author: LEHMAN, Chief Justice.

text:
    In the Matter of the Workers' Compensation Claim of Josephine B. HERNANDEZ, Josephine B. Hernandez, Appellant (Petitioner), v. Laramie County School District No. 1, and State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division, Appellees (Respondents).
    No. 98-249.
    Supreme Court of Wyoming.
    July 7, 2000.

      Representing Appellant: George Santini of Ross, Ross & Santini, L.L.C., Cheyenne, WY.
    Representing Appellee Laramie County School District Number One: Mark R. Stewart, Cheyenne, WY.
    Representing Appellee Workers Safety and Compensation Division: Gay Wood-house, Attorney General; Gerald W. Laska, Senior Assistant Attorney General; and Bernard P. Haggerty, Senior Assistant Attorney General.
    Before LEHMAN, C.J., and THOMAS, MACY , GOLDEN, and HILL, JJ.

      This case was originally assigned io Justice Thomas on February 24, 1999, for the rendering of a proffered majority opinion. This case was reassigned to Chief Justice Lehman on December 16, 1999. Chief Justice Lehman distributed a proffered opinion to the court on May 9, 2000.

       Retired June 2, 2000.

   LEHMAN, Chief Justice.

Josephine B. Hernandez (Hernandez) applied for temporary total disability benefits for the time she claims to have been totally disabled following TMJ surgery that was performed subsequent to her acceptance of an award of permanent partial impairment benefits for the same condition. After denial of the temporary total disability benefits by the Workers' Safety and Compensation Division, Hernandez objected, and the matter was referred to the Medical Commission for a contested case hearing. The Medical Commission allowed the expenses associated with the TMJ surgery, but ruled Hernandez was not entitled to temporary total disability benefits. Because we conclude the Medical Commission incorrectly determined the Worker's Compensation Act required Hernandez to prove an increase in permanent incapacity to establish entitlement to temporary total disability benefits, we will reverse and remand for the limited purpose of determining whether Hernandez established an increase in incapacity, even if the increase was only temporary. We affirm in part and reverse in part.

ISSUES

This Statement of the Issues is found in the Brief of the Appellant, Hernandez:

1. Did the Medical Commission err in denying Hernandez's claims for temporary total disability following surgery in June of 1997?

This Statement of the Issues is found in the Brief of Appellee, Laramie County School District Number One:

A. Is the Employee entitled to additional temporary total disability benefits under W.S. Section 27-14-404(b) for a period of temporary disability following her TMJ surgery in June 1997?
B. Is the Employee entitled to additional temporary total disability benefits under W.S. Section 27-14-605(a) for a period of temporary disability following her TMJ surgery in June 1997?

This Statement of the Issues is found in the Brief of Appellee, the Wyoming Workers' Safety and Compensation Division:

The Employee underwent surgery one year after receiving a permanent impairment award. The Medical Commission denied temporary total disability benefits because she had not returned to work before surgery.
A. Was the denial of temporary total disability benefits in accordance with law?
The Medical Commission denied the Employee's application to modify benefits because she failed to prove either an increase in incapacity or a mistake.
B. Was the denial of the application to modify benefits in accordance with law?

FACTS

On February 28, 1995, Hernandez was injured while employed as a bus aide for Laramie County School District No. 1. She submitted a claim for temporary total disability with the Workers' Safety and Compensation Division (Division) on March 20, 1995, complaining of neck, right shoulder, and low back pain. She was ultimately diagnosed with a temporal mandibular joint injury (TMJ). In April of 1996, her physician assigned her a 10% whole person impairment rating and concluded she had attained maximum medical improvement. The Division agreed and, on April 16, 1996, awarded her a 10% permanent partial impairment award resulting from the TMJ injury, effectively terminating her temporary total disability benefits pursuant to Wyo. Stat. Ann. § 27-14-404(c)@i).

Hernandez continued to experience problems with her TMJ and, on June 4, 1997, underwent surgery for bilateral degenerative TMJ disease. On July 18, 1997, she applied for temporary total disability benefits for June 3, 1997, through July 30, 1997. The Division responded by requesting additional information to determine her eligibility for temporary total disability benefits under Wyo. Stat. Ann. § 27-14-404(b). In reply to the request for information, Hernandez submitted a letter advising the Division she had not returned to work prior to undergoing TMJ surgery. Along with the letter, she submitted a petition to modify and reopen her case under Wyo. Stat. Ann. § 27-14-605. The basis for her modification was that TMJ surgery was not reasonably contemplated at the time of her award, her condition had not stabilized, and she had not reached maximum medical improvement. In addition, she claimed she had sustained an increase in incapacity. On August 5, 1997, the Division issued a Final Determination denying both Hernandez's application for temporary total disability benefits and her petition to modify. Hernandez objected, and the Division referred her case to the Medical Commission.

Along with Hernandez's claim for temporary total disability benefits, the Medical Commission also heard two other Hernandez claims, a claim for benefits for the cost of the TMJ surgery and a claim for mental injuries. In its order, the Medical Commission recognized that Hernandez's TMJ syndrome was work related, making the cost of surgery and treatment compensable, but denied her total temporary benefits for June 8, 1997, to July 30, 1997, because Hernandez had not returned to work prior to surgery and because she failed to prove an increase in permanent incapacity. The Medical Commission also denied her claim for mental injuries, which she does not challenge on appeal. Hernandez appealed to the district court, which certified the case pursuant to W.R.A.P. 12.09.

STANDARD OF REVIEW

Although the Medical Commission allowed her costs for the TMJ surgery and treatment, Hernandez claims that she is also entitled to temporary total disability (TTD) benefits for the two months following her TMJ surgery. These issues raise questions of fact review as well as statutory interpretation.

In performing our review of a decision that a claimant has failed to meet her burden of proof, we apply the following principles:

A claimant for worker's compensation benefits has the burden of proving all the essential elements of the claim by a preponderance of the evidence in the contested case hearing. Martinez v. State ex rel. Wyoming Workers' Compensation Div., 917 P.2d 619, 621 (Wyo.1996). When an agency decides that the party charged with the burden of proof has failed to meet that burden, the case is reviewed under the "[alrbitrary, capricious, an abuse of discretion or otherwise not in accordance with law" language of Wyo. Stat. § 16-3-114(c)(ii) (1990). City of Casper v. Utech, 895 P.2d 449, 452 (Wyo.1995). On appeal the complainant ... has the burden of proving arbitrary administrative action. Knight v. Environmental Quality Council of State of Wyo., 805 P.2d 268 (Wyo.1991); Wyoming Bancorporation v. Bonham, 527 P.2d 482, 489 (Wyo.1974); Marathon Oil Co. v. Welch, 379 P.2d 832, 886 (Wyo.1963); Whitesides v. Council of City of Cheyenne, 78 Wyo. 80, 319 P.2d 520, 526 (1957). The agency, as the trier of fact, is charged with weighing the evidence and determining the credibility of witnesses. Utech, 895 P.2d at 451, and cases there cited. The deference normally accorded to the findings of fact by a trial court is extended to the administrative agency, and the agency's decision as to the facts will not be overturned unless it is clearly contrary to the overwhelming weight of the evidence. Wyoming Steel & Fab, Inc. v. Robles, 882 P.2d 878, 875 (Wyo.1994).

Pederson v. State ex rel. Workers' Compensation Div., 989 P.2d 740, 742 (Wyo.1997); In re Nissen, 983 P.2d 722, 724 (Wyo.1999); Carrillo v. State ex rel. Workers' Safety and Compensation Div., 987 P.2d 690, 693 (Wyo.1999).

When interpreting statutes,

We read the text of the statute and pay attention to its internal structure and the functional relation between the parts and the whole. We make the determination as to meaning, that is, whether the statute's meaning is subject to varying interpretations. If we determine that the meaning is not subject to varying interpretations, that may end the exercise, although we may resort to extrinsic aids of interpretation, such as legislative history if available and rules of construction, to confirm the determination. On the other hand, if we determine that the meaning is subject to varying interpretations, we must resort to available extrinsic aids. If an ambiguous statute has been construed by an agency charged with administering it, we will accord deference to, but are not bound by, that construction. After all, the final construction of an ambiguous statute is a question for the court.

Parker Land and Cattle Co. v. Game & Fish Comm'n, 845 P.2d 1040, 1045 (Wyo.1998).

DISCUSSION

Analysis of Hernandeg's claim begins with a review of the temporary total disability (TTD) statute, Wyo. Stat. Ann. § 27-14-404, which provides in pertinent part:

(b) Any employee awarded benefits under W.S. 27-14-405 or 27-14-406 is not eligible for benefits under subsection (a) of this section unless the employee has returned to gainful employment and following employment, undergoes additional surgery not reasonably contemplated before the award for permanent impairment or disability and then only for a reasonable period of recuperation, confinement for medical care during the actual period of confinement or unless application is made and an award is granted under W.S. 27-14-605.

Here, because Hernandez previously accepted a 10% permanent partial impairment award for her TMJ problems pursuant to Wyo. Stat. Ann. § 27-14-405, the TTD benefits she seeks are governed by § 27-14-404(b).

Pursuant to § 27-14-404(b), two alternatives exist for payment of TTD benefits after a receipt of benefits under § 27-14-405 or § 27-14-406. Under the first ground, the employee is required to, inter alia, return to gainful employment prior to surgery. It is undisputed that Hernandez had not done so. Under the plain and unambiguous language of § 27-14-404(b), Hernandez's acceptance of an award under § 27-14-405 combined with her failure to return to gainful employment prior to surgery precludes her recovery of temporary total disability benefits under the first alternative.

We turn then to Hernandez argument that she is entitled to TTD benefits under the second alternative found in § 27-14-404(b), which precludes such an award "unless application is made and an award is granted under W.S. 27-14-605." The clear language of 27-14-404(b) thus requires us to shift our focus to Wyo. Stat. Ann. § 27-14-605(a), which provides in pertinent part:

If a determination is made in favor of or on behalf of an employee for any benefits under this act, an application may be made to the division by any party within four (4) years from the date of the last payment for additional benefits or for a modification of the amount of benefits on the ground of increase or decrease of incapacity due solely to the injury, or upon grounds of mistake or fraud.

Whether applying for additional benefits or a modification of the amount of benefits, the claimant is required to establish the grounds for such an application, i.e., an increase or decrease of incapacity due solely to the injury, or mistake, or fraud. Jackson v. J.W. Williams, Inc., 886 P.2d 601, 603 (Wyo.1994). Here there is no question of fraud.

We turn first to the question of whether Hernandez has established an increase in incapacity due solely to the injury. We have previously determined that "when an employee's condition changes from permanent partial disability to temporary total disability, his incapacity is increased." Parnell v. State ex rel. Worker's Compensation Div., 735 P.2d 1867, 1368 (Wyo.1987) (emphasis in original). This is true regardless of whether the claimant's permanent partial disability has increased. Harris v. State ex rel. Workers' Compensation Div., 786 P.2d 309, 310 (Wyo.1987). Although such an award may appear to permit a double recovery, we have made clear that a claimant may not be

totally disabled and partially disabled at the same time. Such a result would ignore the principle, implied in the Worker's Compensation Act, that total disability is the maximum disability possible under the Act. If an employee is receiving monthly permanent partial disability payments, which is the usual case, and then receives a temporary total disability award, the permanent partial disability payments should be suspended during the period of temporary total disability and resumed when the period of temporary total disability has ended. An employee who has received a lump sum award should be treated similarly, ie, his permanent partial disability should be deemed to be suspended during the period of temporary total disability.

Parnell v. State ex rel. Wyoming Worker's Conmpensation Div., 735 P.2d at 1369.

Despite Parnell, the Division argues that a TTD award is foreclosed by § 27-14-605(a) regardless of whether Hernandez proved that she had suffered an increase of incapacity due solely to the injury. The Division argues that, after amendments, § 27-14-605(a) now contains a specificity requirement, i.e., that any additional benefits sought must be the same type of benefits that were the subject of the prior favorable determination. We disagree. When Parnell was decided, $ 27-14-605 (at that time codified as § 27-12-606) read "additional benefits of any type or nature." In 1989, § 27-14-605(a) was amended to read "additional medical and disability benefits." 1989 Session Laws, ch. 229, § 1, The subsection was amended to its current state in 1994 when the legislature removed the terms "medical and disability," thus leaving simply "additional benefits." 1994 Session Laws, ch. 86, § 2. These minor amendments have not, contrary to the Division's argument, made a substantive change in the law nor have they effectively overruled Parnell. - Had the legislature intended a specificity requirement, it could have removed completely the phrase "additional benefits," leaving only the term modification, a term more indicative of the specificity requirement propounded by the Division. Therefore, we conclude that an award of TTD benefits as additional benefits is permissible even though the prior determination in Hernandez's favor involved an award of permanent partial impairment benefits.

We turn then to the question of whether the Medical Commission abused its discretion in concluding that Hernandez had failed to establish, by a preponderance of the evidence, her claim for TTD benefits, i.e., her claim she suffered an increase in incapacity due solely to the injury. Whether an increase in incapacity is due solely to the original work-related injury is a question of fact. Jackson v. J.W. Williams, Inc., 886 P.2d at 603. Wyo. Stat. Ann. § 27-14-404(d)(ii) provides that temporary total disability benefits shall not be paid if "[a] claim is filed without the signature of the claimant and certification by the attending health care provider." Snyder v. State ex rel. Worker's Compensation Div., 957 P.2d 289, 293 (Wyo.1998). See also Higgins v. State ex rel. Worker's Compensation Div., 739 P.2d 129, 188 (Wyo.1987) ("If a physician does not certify that a workman is totally disabled or when it is indicated that he has reached the point of stability or recovery, temporary total disability benefits must cease."). Here, a physician certified Hernandez was totally disabled from June 3, 1997 to July 30, 1997, and this incapacity was attributed to "somatic dysfunction cervical/thoracie." The TTD certification form states it is sufficient for purposes of TTD benefits under § 27-14-404, and Hernandez thus makes a strong case that she has established an increase of incapacity.

However, the Medical Commission did not take into consideration that Hernandez might be entitled to TTD benefits pursuant to § 27-14-605(a) by establishing a temporary increase in incapacity. Instead, the Medical Commission required Hernandez to prove she had suffered an increase in permanent incapacity in order to qualify for the TTD benefits she claimed. Our analysis is to the contrary. We, therefore, conclude the Division erred as a matter of law in requiring Hernandez to prove an increase in permanent incapacity to establish a claim for TTD benefits under § 27-14-605(a). Because the Medical Commission applied an incorrect standard, we reverse its order and remand for the limited purpose of making findings on whether Hernandez has sustained her burden of proving an "increase ... of incapacity due solely to the injury."

Hernandez also argues she is entitled to TTD benefits under $ 27-14-605(a) because her original TTD award for her TMJ should be modified because it was based upon a material mistake. The term "mistake" in Wyo. Stat. Ann. § 27-14-605(a) applies to "those situations in which a mistake in the determination of a material fact has been made by a fact finder." Conn v. Ed Wederski Const. Co., 668 P.2d 649, 653 (Wyo.1983); see also Smith v. State ex rel. Workers' Safety and Compensation Div., 965 P.2d 687, 690 (Wyo.1998). Hernandez argues a mistake occurred because the Division determined her final award without recognizing her condition had not stabilized and she had not achieved maximum medical improvement. She maintains additional surgery was not contemplated at the time of the award and, as such, she should be awarded TTD benefits for the time spent recuperating from surgery. However, an April 3, 1996 letter from one of Hernandez's treating physicians indicates that at a July 20, 1995 evaluation, the physician recommended an MRI of her jaw and an oral surgical follow-up, thus placing Hernandez on notice that a surgical procedure was possible. We agree that Hernandez was unable to prove a material mistake.

CONCLUSION

Under Wyo. Stat. Ann. § 27-14-404(b) and § 27-14-605(a), Hernandez was entitled to additional benefits following her surgery if she could prove she suffered an increase of incapacity due solely to her injury. This does not mean she had to prove she suffered an increase in permanent incapacity; a showing of a temporary increase is sufficient. Parnell v. State ex rel. Worker's Compensation Div., 785 P.2d at 1868; Harris v. State ex rel. Workers' Compensation Div., 736 P.2d at 310. The medical commission erred in requiring otherwise. We, therefore, remand for the limited purpose of determining if Hernandez proved an increase of incapacity due solely to her injury. Any award should be adjusted in accord with the principles enunciated in Parnell v. State ex rel. Worker's Compensation Div., 735 P.2d at 1369. Affirmed in part, reversed in part, and remanded.


source: Caselaw Access Project

author: GOLDEN, Justice.

license: Public Domain

text:
    SUNDOWN, INC., a Wyoming corporation, Appellant (Plaintiff), v. PEARSON REAL ESTATE COMPANY, INC., a Wyoming corporation, John D. Pearson, Individually, Gold Star Land, a Wyoming Limited Liability Company, and Edward W. Kornkven, Individually, Appellees (Defendants).
    No. 99-43.
    Supreme Court of Wyoming.
    July 5, 2000.

      Representing Appellant: John D. Whitaker, Casper, Wyoming.
    Representing Appellees Pearson Real Estate Company, Inc., and John D. Pearson: W.W. Reeves of Reeves & Miller, Casper, Wyoming.
    Representing Appellees Gold Star Land, LLC, and Edward W. Kornkven: Stephen K. Gerdes of White & Steele, P.C., Denver, Colorado. -
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

       Retired June 2, 2000.

   GOLDEN, Justice.

Appellant Sundown, Inc. arbitrated a cancellation of its purchase contract of a ranch with seller after it discovered the extent to which two coal surface mining agreements encumbered the ranch. Contending that misrepresentations by the real estate brokers involved in the transaction, Appellees John D. Pearson, principal of Pearson Real Estate Company (Pearson), and Edward W. Kornkven, principal of Gold Star Land, LLC (Kornkven), induced it to execute the purchase contract and alter its existing ranching operations resulting in damages, Sundown brought suit on grounds of fraud and negligent misrepresentation. At the close of its case-in-chief, the trial judge directed a verdict in favor of Pearson and Kornkven. Sundown appeals.

We affirm the trial court's ruling as applied to Pearson but reverse and remand for trial to determine whether Korakven fraudulently concealed material title exceptions before execution of the contract and caused damages.

ISSUES

Sundown presents these issues for our review:

1. Whether the District Court erred as a matter of law when it concluded that no reasonable jury could find that the Defendants committed fraud or negligent misrepresentation under the facts of this case.
2, Whether the District Court erred as a matter of law when it determined that there were no damages caused by the misrepresentations of the Brokers prior to the delivery of the Arch Agreements to the Buyer.
3. Whether the Defendants breached their duty to take reasonable steps to avoid misrepresenting the property.
4. Whether there was sufficient evidence for the jury to find that Appellee Kornkven owed Plaintiff a duty of utmost good faith, loyalty and confidence which he breached by failing to discover and disclose to the Plaintiff the effect of the Arch Agreements.

Pearson presents these issues for our review:

A. Whether Appellant offered evidence of any misrepresentation from which a reasonable jury could find that Appellee Pearson misrepresented or failed to disclose any material fact under any of the theories plead or pursued by Appellant?
B. Whether Appellant's claims are barred by prior judgment on the same claims in arbitration with Appellee's principal.

Appellee Kornkven does not present separate issues.

FACTS

Mare Nogle, a Casper businessman, owns the Credit Bureau of Casper, its branch offices, and Sundown, Inc., a real estate and ranch holding company consisting of commercial real estate and two ranches with 700 and 2,800 deeded acres respectively. Both ranches have federal and state permits. One ranch is a 300 cow-calf operation, and the other ranch runs 2,800 head of sheep. Sundown was interested in purchasing another ranch in order to consolidate its operations and increase its livestock number. In 1996, Nogle received information from brokers Pearson and Kornkven that the Dang Meadows Ranch in Carbon County, Wyoming, was for sale. The ranch consists of 39,955 deeded acres and over 60,000 acres of non-owned access from government and railroad leases. Pearson provided to Nogle a brochure about the ranch stating that no known mineral rights remained with the seller and describing the grazing restrictions caused by coal mining operations on the ranch. It stated in part:

Over the years, there has been a considerable amount of open pit strip mining done on the Federal, deeded and U.P.R.R. lands in the southern area of the ranch. At the present time (as of December 1995), there are three active mining companies: 1) Arch Minerals; 2) Rosebud Coal Co.; and 3) Cyprus/Shoshone.
The pastures where coal mining has occurred must all be reclaimed according to Wyoming Department of Environmental Quality. The reclamation areas must be totally restored to their original state and therefore it can take years (usually 6-8 years) before livestock are allowed to graze the reclaimed areas. Within the next 1-2 years, some of the reclaimed areas will become available to graze, which will allow the owner to carry more livestock.
The coal being mined in this area is a very high grade coal, but has a lot of overburden (dirt) on top of the coal. Therefore, it is very expensive to mine the coal and the probability for these mines to stay open is not feasible. The coal mines have been beneficial to the ranch because of water development, fencing and improved roads.

Regarding purchase price, the brochure stated that "[tlhe seller reserves the right to effectuate a 1031 exchange for all or a portion of the final sales price of the ranch."

The ranch is encumbered by two coal surface mining agreements known as the Arch Agreements executed in 1986 and 1998 for a term of thirty years. The agreements do not specify the number of acres encumbered but list over seven pages of legal descriptions of the affected property. Testimony at trial established that these agreements give Arch exclusive right of control of a majority of the ranch.

Arrangements were made for Nogle to tour the ranch, and Pearson demanded that Kornkven sign a brokerage disclosure statement before the tour. Kornkven did not provide this statement, and Nogle toured the ranch on April 18 and April 21, 1996. On the first trip, Pearson told Nogle that the coal mining operations had benefitted the ranch in a number of ways and were ending in the next couple of years. Nogle toured the ranch and noticed little activity from the coal mining operations.: On the second visit, the ranch manager, Casey Palm, showed Nogle a map by Arch Mineral that indicated where the restricted grazing was on the ranch. That map showed that the majority of the mining operations was on adjacent property and indicated that a few isolated areas of the ranch were restricted to grazing. At that time, Nogle claims that the brokers told him that the purchase could be completed through a stock exchange purchase.

A title commitment showing sixty-two title exceptions was delivered to Pearson on March 20, 1996. On April 26, 1996, Pearson gave Kornkven a copy of the title commitment containing potential exceptions of ree-ords including the Arch - Agreements. Kornkven did not give this information to Nogle.

On April 26, 1996, Kornkven prepared a written offer to purchase the ranch expressing that Sundown, Inc. was buying the property "subject to" title exceptions of record. Kornkven did not discuss this provision with Nogle and had not provided either Nogle or Pearson with a brokerage disclosure statement; however, Nogle claims that Kornkven represented to him that he was working as his agent. Nogle shared confidential information with Kornkven. Kornkven signed a second offer without Nogle's permission on July 29, 1996, and on August 5, 1996, Nogle signed that written offer for Sundown, Inc., to purchase the property subject to title exceptions of record and delivered $50,000.00 in earnest money to Pearson. The offer was rejected, further negotiations ensued, and Pearson faxed a counteroffer to Kornkven from the seller that included an addendum to the counteroffer titled Addendum B-1 which referred to the Arch agreements:

Purchaser is aware and acknowledges by signing this agreement that there is restricted livestock use of the two pastures known as (A) Headquarters Pasture (B) TV Hill Pasture. Due to active coal mining and related reclamation work in these two pastures, Dana Meadows Ranch has restricted livestock grazing use of these two pastures. The Seller shall provide to the Purchaser the written agreement between Dana Meadows Ranch and Arch Mineral stating the terms and conditions of said agreement.

Nogle claims that Kornkven did not show him the Addendum. His claim is supported by the lack of his signature on the Addendum and counteroffer although each had signature lines for Nogle to sign acknowledging that he had seen them. More counteroffers were exchanged in which Nogle stated that he was seeking a stock exchange purchase, and offering $1,700,000.00 for the ranch. These terms were accepted by the seller on August 19, 1996.

Nogle signed the real estate contract for the ranch which contained the following provisions:

X. Condition of Property.
goos ok
B. Buyer acknowledges and agrees that, upon execution of this Contract:
1. Buyer is not relying upon any representations of Seller or Seller's Agents or representatives as to any condition which Buyer deems to be material to Buyer's decision to purchase this property;
XI. Inspections.
D. Waiver of Defects.
Buyer acknowledges that he has not been denied any opportunity to inspect property. Other than repairs or defects submitted to the Seller in writing pursuant to XI (A), (B), or (C) above, or in the event no repairs or inspections are required by Buyer, Buyer accepts the property in its entirety in "as is, where is" condition without any implied or express warranty by Seller or by any Broker.
XV. Consents and Acknowledgments.
D. E.W. Kornkven (Broker working with the Buyer) hereby discloses that it is working with the Buyer as Seller's Sub-agent and will be compensated by Seller. Buyer and Seller consent to that arrangement. Broker has previously delivered to (Buyer)(Seller) a written Real Estate Brokerage Disclosure.

After the contract was signed, the seller sent the Arch Agreements to Pearson who forwarded them to Kornkven. Pearson attached a cover letter dated August 26, 1996, and a copy of the map that Palm had shown to Nogle on April 18. The cover letter was entitled "Copy of Agreement between Arch of Wyoming, Inc. and Dana Meadows Ranches/Reclamation Map" and stated:

As you know, Arch Minerals has two operating coal mines on the Dana Meadows Ranch known as the Medicine Bow and the Seminoe II Mines. I am forwarding to you ... the original ... Agreement ... [and] another agreement [that] was completed that avoided litigation ... dated November 10, 1998. ...
As you know Mare, Casey Palm and Lois Palm MeCalla now work hand in hand with Arch Mineral to coordinate any grazing on the two pastures at the southern end of the ranch. The large map that I am forwarding to you shows where coal mining has occurred and where the various reclamation projects have been finished.
Large areas of the Dana Meadows Ranch, particularly in the southern end of the ranch have been mined and reclaimed. Those areas have been in a set-aside reclamation project anywhere from 7-10 years and it is my understanding that most of these reclaimed areas are about to be released out of the reclamation set-aside period by the Department of Environmental Quality, State of Wyoming. As you know, many of the reclaimed areas have had no livestock grazing on them for years and in the near future, as these reclaimed areas are released out of the reclamation set-aside, livestock grazing will be allowed.
As you probably know, it appears that the three mines operating on the ranch at the present time will be winding down their operations these next 4-6 years. I have also enclosed an article that was published on June 25, 1996, stating that more than likely, Arch Mineral is going to wind down their operations in the Hanna Area....

On September 7, 1996, the title company issued a title commitment listing Sundown, Inc., as the buyer and listing sixty-seven exceptions to title. On September 12, 1996, all parties met at the ranch and reviewed the document, and Nogle asked Pearson to provide him with copies of certain exceptions. Pearson did not tell him that he had previously provided documents to Kornkven. Pearson provided Nogle with a property condition statement that did not refer to the Arch Agreements. At trial, Sundown's expert witness testified that the property condition statement should have reflected the Arch Agreements.

In late August or early September, Nogle discovered that the stock exchange purchase that Sundown, Inc. had planned was not viable and began seeking cash financing. He instructed Kornkven to obtain and review all relevant documents. Kornkven did not tell him of the effect of the Arch Agreements. Nogle testified that he first received the Arch Agreements in September or October but did not read them. He testified that the representations of Pearson's cover letter and Palm's map in combination with previous representations caused him to believe that none of the title exceptions would effect ranching operations.

Nogle testified that in November of 1996 he began planning to transfer his livestock to Dana Meadows Ranch, and in December he bred his sheep flock to "range lamb" in the spring at the Dana Meadows Ranch. Nogle took the title exception documents including the Arch Agreements to his attorney for review. After his attorney advised him of the effect of the Arch Agreements, Nogle mapped the legal descriptions contained in the agreements and discovered the extent of acreage covered. He decided that the agreements did have a significant impact on ranching operations, and a meeting with Arch Mineral Company to determine its position on the agreements confirmed this belief.

Nogle claimed that the brokers had concealed and misrepresented the scope of the Arch Agreements and demanded the seller reduce the purchase price or return his earnest money. The seller refused, and the parties went to arbitration. Early in this process, the seller sold the ranch for $1.9 million. A three-arbitrator panel determined that because of the numerous title exceptions, the seller had not conveyed merchantable title as required under the contract and ordered that Sundown's earnest money deposit be returned. The order denied all other claims of damages.

Sundown, Inc. brought suit against the two brokers, and the parties went to trial. At the close of Sundown's evidence, the judge directed a verdict for both brokers, ruling that Sundown, Inc. had not shown any breach of duty and had not shown that Sundown, Inc. had suffered any damages before it was given the Arch Agreements. This appeal followed.

DISCUSSION

Standard of Review

W.R.C.P. 50(a)(1) provides:

(a) Judgment as a matter of law.-
(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.

"Despite the fact that judgment as a matter of law should be granted cautiously and sparingly, the district court has an obligation to direct entry of such a judgment where there is legally insufficient evidence to support a verdict on a particular issue. The decision to grant or deny a motion for a judgment as a matter of law is reviewed de movo." Sayer v. Williams, 962 P.2d 165, 167 (Wyo.1998).

We undertake a full review of the record without deference to the views of the trial court. The test to be applied is whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable persons could have reached. We view the evidence in the light most favorable to the nonmov-ing party, and give that party the benefit of all reasonable inferences that may be drawn from the evidence. When the facts permit the drawing of more than one inference, it is for the jury to choose which will be utilized.

John Q. Hammons Inc. v. Poletis, 954 P.2d 1353, 1356 (Wyo.1998) (citations omitted). If the inferences favorable to the movant are subject to doubt, or if parallel inferences can be drawn, the motion appropriately is denied. Stauffer Chemical Co. v. Curry, 778 P.2d 1083, 1103 (Wyo.1989); Ramirez v. Metropolitan Life Insurance Company, 580 P2d 1136, 1138 (Wyo.1978).

Claims against Pearson

Fraud is established when a plaintiff demonstrates, by clear and convincing evidence, that (1) the defendant made a false representation intended to induce action by the plaintiff; (2) the plaintiff reasonably believed the representation to be true; and (8) the plaintiff relied on the false representation and suffered damages. Jurkovich v. Tomlinson, 905 P.2d 409, 411 (Wyo.1995); Lavoie v. Safecare Health Service, Inc., 840 P.2d 239, 252 (Wyo.1992); Husman, Inc. v. Triton Coal Co., 809 P.2d 796, 799 (Wyo.1991). See also Britton v. Bill Anselmi Pontiac-Buick-GMC, Inc., 786 P.2d 855, 860 (Wyo.1990); Rocky Mountain Helicopters, Inc. v. Air Freight, Inc., 773 P.2d 911, 919 (Wyo.1989). Conduct or words which tend to produce an erroneous impression may satisfy the plaintiff's burden. Britton, 786 P.2d at 860. In addition, even if someone is not under a duty to speak, if he does speak, he is under a duty to speak truthfully and to make a full and fair disclosure. Id.; Meeker v. Lanham, 604 P.2d 556, 558 (Wyo.1979). Reliance is reasonable when false representations have occurred prior to the execution of the contract which is sought to be avoided or for which damages are sought to be recovered. Schepps v. Howe, 665 P.2d 504, 508 (Wyo.1983).

Sundown contends that Pearson’s fraudulent representations before the contract was executed appeared in the brochure statements and the map of restricted grazing, both of which failed to disclose the Arch Agreements and the significant impact of the Arch Agreements on the use of the land. Pearson contends that the map represented present grazing restrictions, not future, and represented proposed areas for coal mining and not all areas subject to the Arch Agreements. He contends that the brochure statements were opinions that are not subject to a fraud action, pointing to the rule that in order for the brochure statements to be actionable, any false representation must relate to a matter of fact rather than of opinion. Twing v. Schott, 80 Wyo. 100, 113-14, 338 P.2d 839, 843-44 (Wyo.1959). He contends that the existence of the Arch Agreements was properly disclosed before the contract was signed in the Addendum B-l, that he had no duty to read the agreements before the purchase contract was signed, and the agreements were properly disclosed after signing. He claims, further, that he owed no other duty to a non-client buyer.

The duty of care owed by real estate brokers and salespersons to a non-client buyer is: (1) to not perpetuate a material representation of the seller which the broker/salesperson knows or should know is false, and (2) to take reasonable steps to avoid giving the buyer false information. Hogar v. Mobley, 638 P.2d 127, 137-38 (Wyo.1981). Nogle’s testimony at trial establishes that the map purported to show areas of restricted grazing. He testified that it confirmed his understanding that the mining activity was limited and would not affect ranching operations. Nogle did not testify that Pearson or the sellers represented that the map reflected future restrictions. The brochure statements are opinions that are not actionable under the law. The failure to disclose the existence and the effect of the Arch Agreements in the brochure and the map are not fraudulent unless the statements violate the accepted standards in the real estate field as provided by Wyoming statute. Snyder v. Lovercheck, 992 P.2d 1079, 1090 (Wyo.1999) (citing Hogar, 638 P.2d at 138). When the contract was executed in 1996, Wyoming statute made general prohibitions against substantially misrepresenting facts and making false promises in order to induce action. Wyo.Stat.Ann. § 33-28-111(a)(i) (Lexis 1999). Under this general fraud standard, we do not find that failing to disclose the existence and the effect of the Arch agreements in the brochure and map are fraudulent misrepresentations.

Sundown next contends that, after the contract was executed, Pearson drafted a seriously misleading cover letter to the Arch Agreements stressing the value the coal companies had added to the ranch but saying nothing about the burdens it imposed on the surface. It also claims that Pearson’s property disclosure statement did not identify the Arch Agreements although the statement was prepared on August 27,1996, after Pearson claims to have first read and delivered the Arch Agreements to Kornkven. Sundown contends these misrepresentations induced it to rely on Pearson’s representations that ranching operations were not affected by the agreements rather than closely reading the accompanying Arch Agreements, and his reliance caused him to decide to range lamb his sheep and thereby incur damages. Although the trial court determined that Sundown’s possession of the agreements before damages were incurred precluded recovery, we find that the cover letter is not fraudulent, but expresses mere opinion about the future winding down of mining operations that is not actionable.

Sundown’s contentions amount to a claim of fraudulent nondisclosure and fraudulent concealment. See Richey v. Patrick, 904 P.2d 798, 801 (Wyo.1995) (citing Restatement (Second) of Torts §§ 551, 550 (1977)). Before nondisclosure or fraudulent concealment can be considered, Sundown must show that Pearson had a duty to disclose the information. Burman v. Richmond Homes Ltd., 821 P.2d 913, 918 (Colo.App.1991). Sundown has made no such showing either in this appeal or at trial, and we find no error in entry of the directed verdict on the issue of fraud.

Sundown next contends that Pearson's representations were negligent. The elements of negligent misrepresentation are false information supplied in the course of one's business for the guidance of others in their business; failure to exercise reasonable care in obtaining or relating the information; and pecuniary loss resulting from justifiable reliance thereon. Richey, 904 P.2d at 802; Restatement (Second) of Torts § 552(1) (1977). In Snyder v. Lovercheck, however, we decided that where the contract includes a disclaimer provision, stating that the buyer is not relying upon any representation of seller or seller's agents, the buyer may not assert a claim for negligent misrepresentation. Snyder, 992 P.2d at 1089. The real estate contract executed by Nogle for Sundown contained such a disclaimer provision, and a claim for negligent misrepresentation cannot be asserted.

Sundown also argues that nondisclosure of the information discussed previously was negligent. We have previously determined that Wyoming does not recognize a cause of action for negligent nondisclosure, Sundown does not provide authority or argument that we should adopt that cause of action in this case, and the issue is not farther considered. Givens v. Fowler, 984 P.2d 1092, 1097 (Wyo.1999). In summary, we affirm the directed verdict for all claims against Pearson.

Claims against Kornkven .

Sundown contends that Kornkven misrepresented his agency relationship by telling the seller that he was working for it and telling the buyer that he was working for it; failed to disclose the title exceptions; drafted contracts waiving title exceptions without disclosing them to Nogle; accepted Nogle's request to review the title documents and disclose defects and then failed to disclose the effect of the Arch Agreements. Sundown contends these false representations were intended to and did induce it to sign the purchase contract and close the transaction, and its reliance reasonably caused it to decide to range lamb the sheep and thereby incur damages.

Although Kornkven contends that the executed contract discloses that he was the seller's subagent, Nogle testified that Kornkven orally represented that he was acting as Sundown's agent and then assumed responsibilities to review the title exceptions for Sundown. We note that Kornkven's failure to provide a brokerage disclosure statement to the seller supports Sundown's claim. This Court has not addressed the issue of the duty owed by a broker who misrepresents his ability to represent purchaser's interest because he also represents seller. See Messler v. Phillips, 867 P.2d 128, 182 (Colo.App.1998) (broker's negligent misrepresentation violated broker's duty of honesty and fair dealing). Sundown contends that if the jury found that Kornkven was acting as Sundown's agent, Kornkven owed it a fiduciary duty of good faith and undivided loyalty. Hagar, 638 P.2d at 137. Sundown contends that Kornkven breached this duty by failing to disclose the existence and effect of the Arch agreements.

Kornkven contends that this issue is being raised for the first time on appeal. W.R.C.P. 9(b) provides that fraud must be pled with particularity. Our review of Sundown's complaint indicates that it identified Kornkven as the subagent of Pearson Real Estate Company, identified the duty owed as the duty a broker owes to a nonelient buyer and did not state any facts alleging that Kornkven acted as buyer's agent and acted fraudulently in that capacity. The record does not indicate that the complaint was amended to plead the fraud claim against Kornkven in any capacity other than as seller's subagent. We agree with Kornkven that at the time that the directed verdict was entered the issue before the trial court was Kornkven's breach of the duty owed by a broker to a nonelient. This claim that Kornkven was acting as Sundown's agent is raised improperly for the first time on appeal.

Limited to finding that Kornkven was acting as seller's agent and not acting as Sundown's agent, the applicable duty is the same as Pearson's, and we again find that Sundown has not properly established a negligent nondisclosure cause of action and cannot assert a claim for negligent misrepresentation because of the disclaimer provision. We do find, however, that the jury may consider whether Kornkven's failure to provide the title commitment listing and the Addendum B-1 to Nogle before execution of the contract concealed material facts. Such conduct, if intentional, would constitute fraudulent concealment, and the party would be liable for pecuniary loss. Restatement (Second) of Torts § 550 (1977); see Richey, 904 P.2d at 802. Whether the element of damages has been satisfied is next considered.

Damages

Sundown has claimed it incurred attorney's fees and costs when it had to arbitrate to recover its earnest money. W.R.C.P. 54(d) provides in pertinent part:

(2) Attorney's Fees.
(A) When allowed by law, claims for attorney's fees and related nontaxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial.

{emphasis added). Despite Wyoming's well-settled rule that generally attorney's fees are not recoverable in the absence of specific statutory or contract authority, Snyder, 992 P.2d at 1091, Sundown contends that it is entitled to recover attorney's fees based on the "tort of another" exception to the general rule that each party must pay his own attorney fees, relying on Gray v. Don Miller & Assoc., 35 Cal.3d 498, 198 Cal.Rptr. 551, 674 P.2d 253, 258-59 (1984). Gray's rule permits this exception when the plaintiff is required to protect his interest by bringing an action as the result of another's wrongdoing. Id. This exception is recognized in Restatement (Second) of Torts § 914 (1979), which states:

(1) The damages in a tort action do not ordinarily include compensation for attorney fees or other expenses of the litigation. (2) One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for loss of time, attorney fees and other expenditures thereby suffered or incurred in the earlier action.

In another context, we have previously allowed recovery of attorney's fees incurred as the result of litigation against a third-party. Hoiness-LaBar Ins. v. Julien Const. Co., 743 P.2d 1262, 1273-74 (Wyo.1987). We find that adoption of the Restatement exception is in accord with our law, and Sundown, if successful in proving its cause of action, will be allowed to recover those costs expended to protect its interests by engaging in the arbitration procedures.

CONCLUSION

We affirm the trial court's grant of a directed verdict to Pearson. The evidence that he had fraudulently misrepresented the title exceptions to the ranch before and after execution of the contract was legally insufficient. We reverse the trial court's grant of a directed verdiet to Kornkven on the sole issue of whether Kornkven fraudulently concealed title exceptions to Sundown before execution of the contract resulting in damages, and remand for trial.

      . Buyer should have been deleted but was not. Kornkven never provided the disclosure to Pearson.


author: HILL, Justice.

text:
    Kent R. BROWN, Appellant (Plaintiff), v. LIFE INSURANCE - COMPANY - OF NORTH AMERICA; Cigna Group Insurance, Appellees (Defendants).
    No. 99-262.
    Supreme Court of Wyoming.
    July 5, 2000.

      Kent R. Brown, pro se.
    Representing Appellee: Mark C. Overturf of Overturf & McGath, P.C., Denver, Colorado.
    Before LEHMAN, C.J., and THOMAS, MACY , GOLDEN, and HILL, JJ.

       Retired June 2, 2000.

   HILL, Justice.

Appellant Kent R. Brown (Brown) seeks review of an order of the district court granting summary judgment in favor of Appelice Life Insurance Company of North America (LINA). The district court granted summary judgment for LINA on the basis that Brown's claim for disability benefits was barred because he failed to make a timely application for benefits as required by the policy of insurance. We reverse and remand.

ISSUES

Brown provides this statement of the issues:

I. Do material facts exist, precluding the granting of summary judgment, regarding whether Appellant's alleged breach of the insurance policy provisions requiring timely notice and proof of loss were either excused under the circumstances or immaterial to the purpose of the contract, since the insurer suffered no prejudice to its ability to investigate the claim.
II. If prejudice to the insurer is a factor to be considered before coverage will be forfeited due to breach of contract terms, is there any arbitrary period of time, other than the applicable statute of limitations, after which an analysis of such prejudice need not be performed.
III. Did Appellees' payment of Loss of Member benefits due under an insurance policy, without effective reservation of rights, waive by conduct the right to assert the defense of untimely compliance with the Notice and Proof of Loss provisions in denying Monthly Income benefits contained in the same policy, where the Notice and Proof of Loss provisions applied equally to both benefits.

LINA recapitulates the issues in significantly different terms:

L. Has Appellant presented any facts or law which would exempt him from WS. §§ 26-18-109 and 26-18-111 and the terms of the Policy?
II. Does an insurance company waive previously identified defenses when it states: "Nothing contained in this letter should be construed as a waiver of any rights or defenses under the policy"?
Does the 3 year statute of limitations applicable to disability insurance pol-icles bar actions that are filed 10 years after the date of loss? IIL

FACTS

Brown filed his complaint on July 7, 1997, alleging breach of a contract for disability insurance, as well as a breach of the insurer's duty of good faith and fair dealing. LINA answered the complaint, denied (or asserted lack of information to admit or deny) all of the allegations in Brown's complaint, and asserted some 14 affirmative defenses, essentially a laundry list of all available defenses to a complaint such as that in issue here. On April 20, 1999, LINA filed its motion for summary judgment. On May 24, 1999, Brown answered that motion and filed his motion for summary judgment. LINA filed a reply to Brown's eross motion for summary judgment on June 28, 1999. The record also contains a two-page document filed by Brown, which is entitled, "Statement of Proceedings." That statement purports to be filed under W.R.A.P. 3.08; however, the requirements of that rule were not followed, and the document plays no part in the resolution of this appeal.

The facts underlying the complaint are available only in the sense that they are either pleaded by Brown, gleaned from doeu-ments attached to the parties' pleadings, or set out in the parties' papers. For purposes of our review of the Order Granting Summary Judgment, there is no dispute concerning the underlying facts. The dispute focuses on what legal effect those facts have. In summary, the facts are that Brown, a dentist, purchased an occupational disability policy on November 1, 1979, through the American Dental Association. He paid all premiums due under the policy. Under the policy, Brown was to receive $1,000.00 per month, for a period of 60 months (ie., a total of $60,000.00) if he was disabled from performing his occupation as a dentist.

Brown suffered an injury to his eye on July 4, 1987, in a fireworks accident. The accident left Brown with virtually no vision in his left eye, except for light perception. His physician told him that he would achieve maximum medical recovery six months after the date of the accident. Virtually no recovery was experienced at the end of six months, and Brown contacted a company to arrange for the sale of his practice. Based upon the materials contained in the record, there is no apparent dispute but that Brown was totally disabled from practicing as a dentist after the injury to his eye. A letter dated June 1, 1994, from Brown's physician to LINA contains this statement:

In regards to the letter of April 19, 1994, I do not know the exact date that Dr. Brown was totally disabled except dating back to the time of his injury. I do know that he attempted to continue his practice of dentistry. I suspect that onee he continued practice that at some point he realized that he could not deliver the quality of dentistry that he wished to deliver or that perhaps his patients perceived that he was not able to deliver that quality. Certainly Dr. Brown was totally disabled at the time of his accident.

Nonetheless, Brown continued to practice dentistry after the accident, in spite of his disability, and he managed to keep his practice going in the interim. The production from his practice fell from over $188,000 in 1986 to $69,000 in 1991. Even with the assistance of his wife, he was unable to keep the practice going at a level that covered the overhead for a dental office. The process of selling the practice ended up taking several years so that the sale was not consummated until May 1, 1993. In late July or early August of 1993, Brown submitted a claim for loss of member (loss of eye), as well as for disability benefits. His initial claim was returned to him because of a change in the earner of the disability policy, and the claim was then forwarded to LINA in August of 1993.

This appeal presents only a very narrow question. The district court limited its ruling to one basis for its summary judgment order:

8. Defendants seek summary judgment on a number of theories. This Court’s ruling that Plaintiffs claim is barred because he failed to make a timely application is dispositive of this matter. For this reason the other reasons will not be discussed.
The LINA policy is quite clear with regard to an insured’s obligation to notify the company of a loss. This obligation is detailed in two separate paragraphs.
Notice of Claim: Written notice of claim must be given to the Company or the Administrator within 30 days after the occurrence of any loss covered by the Master Policy or as soon thereafter as is reasonably possible. Notice given by or on behalf of the agent o[f] the claimant to the Company at its Home Office in Philadelphia, Pennsylvania, or to any authorized agent of the Company, with information sufficient to identify the insured, shall be deemed notice to the Company.
Proof of Loss: Written proof of loss must be furnished to the Company in case of claim for any loss within 90 days after the date of such loss. Failure to furnish such proof with in [sic] the time required shall not invalidate nor reduce any claim if it was not reasonably possible to give proof within such time, provided such proof is furnished as soon as reasonably possible and in no event, except in the absence of legal capacity of the Claimant, later than one year from the time proof is otherwise required.
Under Plaintiffs version of the facts, he did not make a determination that he was disabled at the time of his injury. He was advised by his doctors not to make any life-changing decisions until after the passage of a six-month healing period. At the end of that time period, he determined that he could no longer practice as a dentist and initiated the process of selling his practice. Under those facts, [he] should have notified LINA of his loss within the first three months of 1988. He did not do so for more than five years.

With respect to providing proofs of loss to an insurer issuing a disability insurance policy, Wyo.Stat.Ann. § 26-18-111 (LEXIS 1999) provides:

26-18-111. Proofs of loss.
Proofs of Loss: Written proof of loss shall be furnished to the insurer at its office in case of claim for loss for which this policy provides any periodic payment, contingent upon continuing loss within ninety (90) days after the termination of the period for which the insurer is liable, and in case of claim for any other loss within ninety (90) days after the date of the loss. Failure to furnish proof within the time required does not invalidate nor reduce any claim if it is not reasonably possible to give proof within that time, provided the proof is furnished as soon as reasonably possible and, except in the absence of legal capacity, not later than one (1) year from the time proof is otherwise required.

The conclusion of the district court was that Brown’s claim was untimely as a matter of law, and that there were no material facts that required the intervention of a fact-finder. Based on the record before us, it seems clear that Brown was entitled to disability benefits under the policy but for the conclusion that his claim was not timely submitted.

STANDARD OF REVIEW

Summary judgment is appropriate only when no genuine issues of material fact exist, and the prevailing party is entitled to judgment as a matter of law. W.R.C.P. 56; Hulse v. First Interstate Bank of Commerce-Gillette, 994 P.2d 957, 958 (Wyo.2000); Century Ready-Mix v. Campbell County School District, 816 P.2d 795, 798 (Wyo.1991). A material fact is any fact that, if proved, would establish or refute an essential element of a claim or defense asserted by a party. Hulse, 994 P.2d at 958-59; Century Ready-Mix, 816 P.2d at 799. When reviewing a grant of summary judgment, we will consider the record in the light most favorable to the party opposing the motion and give that party the benefit of all favorable inferences we may fairly draw from the record. Id.

DISCUSSION

The essence of Brown's first assertion of error is that a reasonable person might well be uncertain as to when application should have been made for benefits under the terms of the policy. Both LINA and the district court view either the accident itself, or Brown's medical condition at six months after the accident, as the event that "triggered" Brown's duty to timely file a claim with LINA. What Brown filed a claim for is disability, and the policy is very explicit about what disability means: the insured's inability because of accident "to practice your own occupation (your special area of dental practice)." Brown continued to practice dentistry, albeit in a much-reduced fashion, until the time he sold his practice in May 1998. Thereafter, he promptly made a claim for disability, as well as for loss of member. Under the terms of the policy, so long as he was practicing his profession as a dentist, he was not disabled and would not have been eligible for disability benefits. 13 Couch on Insurance 3d, §§ 190:1-190:8 (1999). Moreover, the question as to what constitutes a reasonable time for filing of the claim in the context of disability insurance is ordinarily for the jury. Id., §§ 190:183 and 190:112; Burton v. Metropolitan Life Insurance Co., 48 Ga.App. 828, 173 S.E. 922 (1984). Perhaps of greater importance, the disability from which Brown suffered was a continuous disability, and under the terms of the policy, there was nothing to prevent submission of the claim within the duration of the disability covered by the policy. See Goodwin v. Nationwide Insurance Co., 104 Idaho 74, 656 P.2d 185, 148-44 (1982). We also note that, based on the record before us, LINA does not have a viable defense based on prejudice because of an inability to investigate the claim. The record extant demonstrates that an accident occurred, that Brown was eventually totally disabled by it, and that the policy provided for benefits once Brown was deemed disabled from practicing as a dentist.

To the extent there are any remaining issues that relate to the timeliness of the submission of Brown's claim, those issues must be resolved as issues of fact by a fact-finder. Because of this disposition, we need not address the other issues raised in the appeal.

The order granting summary judgment is reversed, and the case is remanded to the district court for further proceedings consistent with this opinion.

      . The Defendants below were LINA and Cigna Group Insurance. The Defendants' pleadings below were filed on behalf of both. Counsel for Appellees purports to represent both named Defendants in this appeal. However, in the Brief of Appellees, only LINA is referred to, and, for purposes of convenience, we will refer to the Appellees collectively as LINA.

      . Both the Order Granting Summary Judgment and LINA's papers refer to the injury as being caused while Brown was playing with fireworks, though there is nothing in the pleadings or otherwise in the record which supports that characterization.

      . The loss of member benefit was paid, and no issue with respect to that claim is included in this appeal. Brown does contend that the payment of that claim was inconsistent with LINA's denial of his disability claim.


author: EASTAUGH, Justice.

text:
    ALASKA CONTRACTING & CONSULTING, INC., Appellant, v. ALASKA DEPARTMENT OF LABOR, Appellee.
    No. S-9022.
    Supreme Court of Alaska.
    Sept. 15, 2000.

      James E. McLain, The Law Offices of William R. Satterberg, Jr., Fairbanks, for Appellant.
    Susan L. Daniels, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I, INTRODUCTION

In 1990 the Alaska Department of Labor determined that a trucking company was not a "Hable employer" required to make contributions under the Alaska Employment Seeu-rity Act. In a 1994 ruling, an administrative hearing officer barred the department's 1998 attempt to assess the company for contributions for 1990. Did the 1990 determination or the 1994 ruling prevent the department from prospectively determining the company's liability for calendar periods after March 1993, when the department sent the company a new notice of assessment? We hold that (1) res judicata and collateral estoppel did not preclude that prospective determination; (2) AS 23.20.315 permitted a determination of the company's liability for new calendar periods; and (8) the department did not err in finding the company statutorily liable We therefore affirm the - superior court decision that affirmed the administrative finding of lability.

II, FACTS AND PROCEEDINGS

The Alaska Employment Security Act creates an unemployment - compensation fund. The act requires employers to pay "contributions" to the Department of Labor for each calendar year in which the employers are subject to the act. They must also withhold employee contributions from their employees' wages, hold the contributions in trust, and pay them to the department when due The department determines whether an "employing unit is an employer and whether service performed for it constitutes employment." The department's Employment Security Division oversees collection of contributions.

This appeal concerns the department's determination that Alaska Contracting & Consulting, Inc. is an employer liable for making contributions to the fund. Alaska Contracting hauls dirt and other road-building materials to construction sites, and provides road-building equipment including dirt-moving trucks, primarily as a subcontractor. It sometimes completes its projects by leasing its own equipment to individual drivers who then lease the equipment back to Alaska Contracting; these "lease-drivers" then operate the equipment and perform the trucking and hauling on the projects. This appeal relates only to these lease-back operations involving the lease-drivers.

In January 1990 the division sent Alaska Contracting a "notice of non-liability" stating that the company was "not a liable employer," that Alaska Contracting had "no employees," and that the wages it paid "[were] not subject to coverage" under the act.

In March 1998 the division sent Alaska Contracting a "notice of coverage" stating that Alaska Contracting was a "liable employer" which was required to provide unemployment coverage for its employees as of March 1, 1990. The division then retroactively assessed contributions for 1990, 1991, and 1992. Alaska Contracting appealed.

Sitting as the appeal tribunal, Hearing Officer Dan A. Kassner heard the appeal and in June 1994 issued his decision. He invalidated the division's March 1998 retrospective coverage determination for 1990, reasoning that because Alaska Contracting had relied on the division's January 1990 non-liability determination, quasi-estoppel prevented the division from retroactively determining Alaska Contracting's status for that year. But he concluded that for the years after 1990, the division could re-audit Alaska Contracting's status and make a new coverage determination based on new or additional evidence. Neither party appealed the June 1994 decision.

In August 1994 the division requested and examined Alaska Contracting's available records for 1991, 1992, and 1998. The division then determined that certain services performed for Alaska Contracting constituted "covered employment" under the act, and that Alaska Contracting was therefore a "liable employer." In May 1995 the division issued a notice of assessment to Alaska Contracting for two calendar quarters in 1991 and one calendar quarter in 1994. Alaska Contracting appealed; it claimed that the June 1994 decision completely barred the assessments.

Sitting as the appeal tribunal, Hearing Officer Stan Jenkins heard the appeal from the May 1995 notice of assessment. In his written decision of July 1996, he ruled that "Icloverage determinations are subject to yearly review and determination." He concluded that Hearing Officer Kassner's June 1994 decision both specifically restricted its application of quasi-estoppel to 1990 and permitted audits and coverage determinations for years after 1990.

Hearing Officer Jenkins next concluded that truck operators who leased trucks from Alaska Contracting to use on Alaska Contracting's projects performed "services," and that Alaska Contracting had failed to show that these drivers fell outside the seope of covered services or employment. But because Alaska Contracting had not received notice until March 19983 that it could be liable, he also decided that Alaska Contracting was liable only for contributions after April 1, 1998. He therefore modified the May 1995 notice of assessment and remanded the assessment liability to the division for recalculation.

Alaska Contracting appealed the July 1996 decision to the Commissioner of Labor, who affirmed. Alaska Contracting then appealed to the superior court, which also affirmed.

Alaska Contracting appeals.

III. DISCUSSION

A. Standard of Review

When the superior court acts as an intermediate court of appeal from an administrative determination, we review the agency's underlying determination independent ly. Different standards of review apply to Alaska Contracting's three legal arguments and we discuss them below where relevant.

B. Neither Res Judicato nor Collateral Estoppel Precludes the Department from Determining that Alaska Contracting Is a Liable Employer.

Invoking the doctrines of res judi-cata and collateral estoppel, Alaska Contracting first argues that the division's 1990 non-liability determination had a "preclusive ef-feet on subsequent administrative proceedings." - It also argues that collateral estoppel barred the division from litigating the coverage issue in 1996, reasoning that the division could have litigated that issue at the 1994 hearing. Whether res judicata or collateral estoppel applies is a question of law that we review de novo.

After entry of a judgment on the merits of a controversy, res judicata bars subsequent actions between the same parties on the same claim, or on claims that the parties were required to bring in the original action. Res judicata, or claim preclusion, implements "the generally recognized public policy that there must be some end to litigation and that when one appears in court to present his case, is fully heard, and the contested issue is decided against him, he may not later renew the litigation in another court." Res judicata applies to adjudicative determinations made by administrative agencies. Res judicata may also apply to administrative proceedings if, after a case-specific review, a court finds that the administrative decision resulted from a procedure "that seems an adequate substitute for judicial procedure" so that according preclu-sive effect to the administrative decision would be fair.

Collateral estoppel, or issue preclusion, bars the relitigation of an issue when

(1) the party against whom the preclusion is employed was a party to or in privity with a party to the first action; (2) the issue precluded from relitigation is identical to the issue decided in the first action; (3) the issue was resolved by a final judgment on the merits; and (4) the determination of the issue was essential to the final judgment.

Issues must therefore actually be litigated before they can be precluded by collateral estoppel. This proposition dooms Alaska Contracting's arguments.

First, the record does not establish that the division's 1990 non-liability determination was a final judgment resulting from an adjudicatory proceeding or from an adequate substitute procedure. Instead, it was the result of an executive decision by a division employee.

Second, elements (2), (8), and (4) of the collateral estoppel test are not satisfied. The June 1994 decision only adjudicated the validity of the March 1998 assessment for the 1990 year. The June 1994 decision could not collaterally estop the department from litigating the issue of coverage for periods not addressed in the June 1994 decision. That decision did not decide that lease-drivers provided no services to Alaska Contracting. It simply ruled that quasi-estoppel barred the department from redetermining coverage for 1990; indeed, it specifically allowed the division to audit and determine Alaska Contracting's status for years after 1990. Moreover, it was not necessary for Hearing Officer Kassner to resolve the coverage issue in 1994 when he ruled that quasi-estoppel precluded the division from assessing Alaska Contracting for the 1990 calendar year.

Alaska Contracting also asserts that AS 28.20.450 and AS 28.20,455 incorporate the doctrine of res judicata. Section 450 provides that final determinations and decisions of the department are conclusive upon employing units, the department, and the claimant. Section 455 provides that final decisions of the department "are binding in all subsequent proceedings . .. involving similar questions unless expressly or impliedly overruled by a later decision of the department or of a court." Alaska Contracting's discussion of those statutes consists of one sentence. It does not explain how those statutes add to its preclusionary analysis. It also fails to cite or discuss AS 28.20.320, which provides that coverage determinations are conclusive. We therefore deem Alaska Contracting to have waived any reliance on those statutes.

Alaska Contracting's preclusionary arguments therefore fail.

C. Alaska Statute 28.20.8150 Permitted the Division to Determine that Alaska Contracting Is a Liable Employer for Periods After April 1, 1998.

We must next decide whether the division had statutory authority to determine Alaska Contracting's contribution liability for periods after 1990. Alaska Contracting argues that the division lacked authority under AS 28.20.815(b) to reconsider the division's 1990 non-liability determination because the division failed to present additional evidence showing that Alaska Contracting had changed the way it conducts business. The department counters that AS 28.20.315(a) and (b) authorize it to change an initial determination based on information concerning a different calendar period, and that evidence from the different period should be considered "additional." This issue presents a question of statutory interpretation which does not involve the special expertise of the agency; we therefore apply our independent judgment.

Alaska Contracting confuses "determinations" with "redeterminations." Alaska Statute 23.20.315(a) and (b) provide:

(a) On its own motion or on the application of an employing unit, the department shall, on the basis of facts found by it, determine whether the employing unit is an employer and whether service performed for it constitutes employment.
(b) Within one year or a longer time which the department for good cause allows, after a determination has been made under (a) of this section, the department may reconsider its determination in the light of additional evidence and make a redetermination.

These subsections of AS 28.20.3815 authorize the department to act in two ways. Subsection (a) authorizes it to make coverage determinations based on "facts found by it"; subsection (b) authorizes the department, at its discretion, to reconsider those determinations "in light of additional evidence." The statute therefore requires different showings depending on the nature of the department's action.

We interpret AS 28.20.315(a) to permit the department to determine coverage for a new period, even if its new coverage determination differs from a previous coverage determination. The act states that contributions accrue and are payable by an employer "for each calendar year in which the employer is subject to [the act]." The statute therefore contemplates the possibility of annual changes in an employing unit's coverage status. Here, as in other areas of tax law, each period subject to contribution liability stands alone, to be determined and assessed separately.

To further the department's ability to assess employment security contributions, AS 23.20.105 gives the department broad authority to examine employment records "at any reasonable time and as often as may be necessary." By permitting review as "often as necessary," the act implicitly recognizes that an employer's coverage status may change, and that the department has the ability to decide whether it has changed. This reading is also consistent with the statutory requirement that the act be "liberally construed to accomplish its purposes to promote employment security ... and to provide through the accumulation of reserves for the payment of compensation to individuals with respect to their unemployment."

Finally, although we do not defer to the department's statutory interpretation, we agree with the commissioner's reasoning that

nothing in AS 28.20.315-28.20.820 prevents the ESD from making a new coverage determination in a new tax year or other period.... The ESD may make coverage determinations on a yearly basis, or even quarterly, if the circumstances warrant. The statute does not on its face require the ESD to give an employer perpetual immunity from taxation....

This interpretation comports with the plain language of the statute and with other courts' readings of similar statutes.

We next consider whether, as Alaska Contracting argues, AS 23.20.315(b) permits the department to make a second coverage determination only if it presents new or additional information. We also agree with the commissioner's reading of this subsection that

[Alaska Statute] 28.20.315(b) covers taxpayer requests for redetermination based on new facts, not prospective redetermina-tions at the Department's own motion. The provision allowing an extended rede-termination period for "... a longer time which the department for good cause allows ..." clearly shows the purpose of the provision, as does the procedure for requesting a redetermination under AS 23.20.315(d).

We agree with the commissioner because the plain language of AS 28.20.315(b) does not apply to new coverage determinations for new tax periods. Instead, we read AS 283.20.315(b) to provide a method of relief from a final determination. After the department determines coverage for a particular tax period, an employer may raise new evidence, the department may review the new evidence to decide whether it correctly determined coverage, and the department may make a retrospective "redetermination" for that tax period.

Our reading of AS 28.20.815(b) favors the department's ability to revisit an "employing unit's" coverage status. An employing unit understandably would prefer a statutory interpretation that enhances the finality of favorable past coverage determinations. But such an interpretation is not required by the language of these subsections and would be contrary to the act's stated purposes." And it could inappropriately limit the department's ability to review coverage status prospectively. - Alaska Contracting's reading would also be at odds with AS 28.20.105, which gives the department access to employer records "at any reasonable time and as often as may be necessary."

The 1996 lability ruling decided Alaska Contracting's coverage status and Hability for new tax periods not covered by the 1990 non-liability determination. The 1996 ruling did not purport to redetermine Alaska Contracting's coverage status for 1990. Although the 1996 ruling of liability for periods after March 1998 differed from the division's 1990 non-liability determination, it was not a "re-determination" because it did not pertain to the 1990 non-liability determination or to the 1990 assessment periods addressed in the 1994 decision. No new evidence was therefore required.

Alaska Contracting next argues that we must conclude that no new evidence supported Hearing Officer Jenking's 1996 liability ruling, because it is unknown what evidence the division considered before it made its 1990 non-liability determination, and because Alaska Contracting has not changed its business practices.

For the reasons we noted above, no new evidence was required for the 1996 prospective ruling addressing periods after April 1, 1993. This is so even though the 1996 ruling decided Alaska Contracting's lability by applying the same statutory criteria that applied in 1990; whether Alaska Contracting was an employer, and whether service performed for it by the lease-drivers constituted employment under AS 28.20.315(a) and AS 23.20.525(a)(10). The evidentiary basis required for liability is therefore the same; the coverage determination must be supported by "facts found by [the department]." Nothing in AS 28.20.815(a) required those facts to be "new" or "additional" to those considered in 1990. We discuss the sufficiency of the evidence in Part IIID.

Alaska Contracting also argues that it relied on the division's 1990 non-liability determination and consequently continued to con-duet its business in the same way it always had. It argues that the department therefore abused its discretion when it made a new coverage determination absent new evidence.

We assume for purposes of discussion that Alaska Contracting relied on the division's 1990 non-liability determination. But its reliance interest was fully protected. First, Hearing Officer Kassner quasi-es-topped the division from retrospectively revisiting the coverage issue for the 1990 calendar year. Second, in 1996 Hearing Officer Jenkins prohibited the division from assessing liability for any calendar period before the company received the March 1998 assessment notice, but permitted the division to prospectively determine coverage for periods after March 1998. Neither party appealed that ruling. In any event, after it received the assessment notice in 19983, it was unreasonable for Alaska Contracting to continue to rely on the 1990 non-liability determination.

We hold that AS 28.20.815(a) permitted the department to prospectively determine Alaska Contracting's contribution liability for new coverage periods, and that subsection .315(a) did not require new or additional evidence for the new determination.

D. The Department Did Not Err in Finding that Alaska Contracting Is a Liable Employer.

We next consider whether the evidence supported the department's finding that Alaska Contracting was a liable employer. For an employing unit to be liable for contributions, the department must determine that it is an "employer" and that "service performed for it constitutes employment." The act defines "employment" as "service performed by an individual whether or not the common-law relationship of master and servant exists." "Employment" does not include service performed by an individual if all three parts of the following statutory independent-contractor test are met: (a) the individual's actions are free from direction and control; (b) the service is performed outside the usual course of the firm's business; and (c) the individual is customarily engaged in a similar independent trade or business of the same nature as that involved in the service performed. This three-part test is known as the "ABC test."

Alaska Contracting maintains that the evidence shows that the lease-back of equipment is not a "service" under the act. Further, it argues that even if the lease-drivers provided a service, the evidence did not support the department's decision that Alaska Contracting was a liable employer.

The department argues that the drivers who drove trucks or hauled materials for Alaska Contracting's projects performed a service. It further argues that Alaska Contracting did not establish that its drivers were not employees, and that therefore Alaska Contracting is not exempt under the three-part "ABC test."

1. "Service"

The issue of whether the lease-drivers provided a service presents a mixed question of law and fact. The definition of "service" presents an issue of statutory interpretation not involving an agency's special expertise; we therefore apply our independent judgment. The act does not define "service" and therefore "[olur duty is to adopt the rule of law that is most persuasive in light of precedent, reason, and policy." We review an administrative agency's factual findings to determine whether they are supported by substantial evidence.

Hearing Officer Jenkins applied the following departmental working definition of "service": "[a] relationship ... where an individual is bound, however strictly and for whatever length of time, to accomplish certain work and labor objectives for another and to receive in return some sort of recompense." Washington courts have defined "personal service" as work clearly performed for a company, or for its benefit. Another definition for "service" is "an intangible commodity in the form of human effort, such as labor, skill or advice." These definitions have common elements of work, labor, or effort expended for another's benefit. We therefore hold that Hearing Officer Jenkins applied a proper test for "service."

Hearing Officer Jenkins then concluded that drivers provided "service" to Alaska Contracting when those drivers operated trucks necessary for Alaska Contracting to satisfy its own obligations. Substantial evidence supports his conclusion.

Richard Van Hatten, president of Alaska Contracting, testified that Alaska Contracting paid each driver who worked on Alaska Contracting's projects a per-ton or hourly rate for the truck's earnings, and that the driver paid two-thirds of that amount back to Alaska Contracting to lease the truck. But Alaska Contracting paid for more than the mere lease of the truck. When using lease-drivers on its own projects, it also paid for the driver's work as part of the "truck's" earnings. Van Hatten himself characterized the lease arrangement as a "truck/driver combination." Because Alaska Contracting's road-building contracts required the work of truck drivers, Alaska Contracting clearly benefitted from the lease-drivers' "services."

Van Hatten characterized Alaska Contracting as a truck "broker" that brokered owners or lessees of equipment with those needing their services. But a broker is an agent who aéts as an intermediary between prospective buyers and sellers. Two elements must be met to find that one is acting as a broker: the person must act for compensation, and the person must act on behalf of someone else. When Alaska Contracting leases a truck to a driver to enable that driver to work on Alaska Contracting's own projects, it acts for itself, not for another. Alaska Contracting, in those situations, therefore acts not as a "broker," but as a contractor for services.

Although we conclude that Alaska Contracting's lease-drivers provided "services," this does not end our inquiry. If Alaska Contracting acts as an "employer" with respect to the lease-drivers, it is covered under the act and is liable for contributions. But it is not covered and is not liable if its lease-drivers are independent contractors under the "ABC test" contained in - AS 23.20.525(a)(10).

2. The "ABC test"

- For Alaska Contracting to satisfy the "ABC test," it must show "to the satisfaction of the department" that all three prongs of the test are met. The department is vested with broad discretion in deciding whether an employment relationship exists, and we will reverse only if the department has abused this discretion.

Hearing Officer Jenkins concluded that Alaska Contracting failed to satisfy any of the three elements with respect to the lease-drivers. Although it is debatable whether substantial evidence supports his finding regarding part (A) of the test-independent control of the lease-drivers, we need not rule on that question because substantial evidence supports the hearing officer's conclusions that Alaska Contracting did not meet either of the other two essential parts of the test.

Part (B) required Alaska Contracting to show that the lease-drivers performed service "outside the usual course of business" or "outside of all the places of business" of Alaska Contracting. But Van Hatten's affidavit established that hauling dirt is within the usual course of business for Alaska Contracting when it acts as a general contractor or subcontractor, and that Alaska Contracting hauls dirt and heavy equipment to places necessary to satisfy its contractual obligations. Hearing Officer Jenkins therefore did not abuse his discretion by concluding that Alaska Contracting did not satisfy part (B) of the test.

Part (C) required Alaska Contracting to show that each lease-driver "was customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed." Van Hatten asserted in his affidavit that the drivers leasing equipment were required to provide their own insurance and to maintain the equipment, but he produced no evidence that drivers actually provided their own insurance, and he later testified that the drivers actually insured through Alaska Contracting because it was cheaper. Hearing Officer Jenkins permissibly found from this evidence that Alaska Contracting, not the lease-driver, "actually provides insurance on those trucks." Van Hatten also testified that the cost of insurance provided by the company was incorporated in the lease payments, but no evidence supported that assertion or established how the lease payments were calculated.

Alaska Contracting did produce some records to support its assertion that the lease-drivers were independent contractors, such as various drivers' business licenses and business license applications. But business licenses do not conclusively determine independent-contractor status. Alaska Contracting also produced some drivers' applications for federal taxpayer identification numbers and some federal tax forms showing that Alaska Contracting had paid the drivers "nonemployee compensation." But its evidence also shows that the lease-drivers often applied for, or obtained, their business licenses and identification numbers only after, or when, they signed their agreements with Alaska Contracting. Hearing Officer Jenkins therefore did not abuse his discretion when he rejected Alaska Contracting's evidence as insufficient to establish that the drivers were customarily involved in similar independent businesses.

Because the record supports Hearing Officer Jenkins's conclusions regarding parts (B) and (C) of the "ABC test," we hold that it was not an abuse of discretion to hold that Alaska Contracting was not exempt from contribution liability and that it was therefore a liable employer.

IV. CONCLUSION

Neither res judicata nor collateral estoppel barred the department from deciding Alaska Contracting's contribution liability for the tax periods at issue here because the coverage issue had not been previously litigated on the merits. The department therefore had statutory authority under AS 28.20.315(a) to determine coverage prospectively for periods after Alaska Contracting received notice that it could be liable notwithstanding the 1990 determination. - Substantial evidence supports the department's finding that the lease-drivers provided "service" to Alaska Contracting. Substantial evidence also supports the hearing officer's 1996 conclusion that Alaska Contracting failed to provide sufficient evidence to satisfy the "ABC test." We therefore AFFIRM the superior court's appellate decision affirming the department's liability determination.

      . AS 23.20.005-.535.

      . See AS 23.30.130(a).

      . Although the agency is now known as the Department of Labor and Workforce Development, ch. 58, § 90, SLA 1999, we use the name applicable when the relevant administrative proceedings took place.

      . AS 23.20.165(a).

      . See AS 23.20.165(a)-(c).

      . AS 23.20.315(a).

      . See AS 23.20.205(a); 8 Alaska Administrative Code (AAC) 85.030; see generally 8 AAC 85.010-510.

      . See Smith v. Sampson, 816 P.2d 902, 904 (Alaska 1991) (independently reviewing Department of Labor determination to deny unemployment benefits).

      . Although Alaska Contracting argues that res judicata bars the subsequent litigation of the coverage issue, our discussion focuses on collateral estoppel because the company is actually seeking the relief of issue preclusion.

      . See Renwick v. State, Bd. of Marine Pilots, 971 P.2d 631, 633 (Alaska 1999).

      . See id. al 633.

      . Id. (quoting DeNardo v. State, 740 P.2d 453, 455 (Alaska 1987); see also Drickersen v. Drickersen, 546 P.2d 162, 169 (Alaska 1976)).

      . See Jeffries v. Glacier State Tel. Co., 604 P.2d 4, 8 (Alaska 1979).

      . State, Child Support Enforcement Div. v. Bromley, 987 P.2d 183, 192 (Alaska 1999) (quoting Holmberg v. State, Div. of Risk Management, 796 P.2d 823, 825 (Alaska 1990)).

      . See id. at 192.

      16. Renwick, 971 P.2d at 634 (quoting Jackinsky v. Jackinsky, 894 P.2d 650, 654 (Alaska 1995)).

      . See AS 23.20.4450. .

      . AS 23.20.455.

      . See State v. O'Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980) (concluding that the "[flailure to argue a point constitutes an abandonment of it") (citations omitted).

      . See State v. Alaska State Employees Ass'n/AFSCME Local 52, 923 P.2d 18, 22 (Alaska 1996).

      . AS 23.20.165.

      . See, e.g., Glass Wholesalers, Inc. v. State Bd. of Tax Comm'rs, 568 N.E.2d 1116, 1124 (Ind.Tax 1991) (declining to give previous exemption from property tax assessment collateral estoppel effect to new tax year because each tax year "stands alone") (citing Foursquare Tabernacle Church of God In Christ v. State Bd. of Tax Comm'rs, 550 N.E.2d 850 (Ind.Tax 1990); Town of Morristown v. Womans Club of Morristown, 10 N.J.Tax 309, 314 (1989), rev'd on other grounds, 242 N.J.Super. 654, 577 A.2d 1309 (N.J.Super.1990), aff'd, 124 N.J. 605, 592 A.2d 216 (1991)).

      . AS 23.20.105 provides:
      Employing units to keep records and reports. An employing unit shall keep work records containing information which the department prescribes. The records shall be open to inspection and may be copied by the department at any reasonable time and as often as may be necessary. The department may require an employing unit to submit sworn or unsworn reports, with respect to persons employed by it, which are considered necessary for the administration of this chapter.

      . AS 23.20.005(a) provides in full:
      This chapter shall be liberally construed to accomplish its purposes to promote employment security by increasing opportunities for placement through the maintenance of a system of public employment offices and to provide through the accumulation of reserves for the payment of compensation to individuals with respect to their unemployment.

      . See supra, note 22.

      . 8 AAC 85.450(a) provides that a coverage determination made pursuant to AS 23.20.315 is final, unless an employer files a written protest, appeal, or request for determination within thirty days after the determination is delivered to the employer or mailed to the employer's address of record.

      . See Sun Valley Express Moving & Storage, Inc. v. Arizona Dep't of Econ. Sec., 140 Ariz. 131, 680 P.2d 841, 845 (Ariz.App.1984) (interpreting similar Arizona statute as setting forth procedural method by which employer may question propriety of liability determination; statute provided department authority to reconsider final liability determination).

      . See AS 23.20.005(a).

      . See AS 23.20.315(a).

      . - The elements of quasi-estoppel are:
      whether the party asserting the inconsistent position has gained an advantage or produced some disadvantage through the first position; the magnitude of the inconsistency; whether changed circumstances tend to justify the inconsistency; whether the inconsistency was relied on by the party claiming estoppel to his detriment; and whether the first assertion was made with full knowledge of the facts.
      Jamison v. Consolidated Util., Inc., 576 P.2d 97, 102-03 (Alaska 1978).

      . AS 23.20.315(a).

      . AS 23.20.525(a)(10) defines "employment'" as:
      service performed by an individual whether or not the common-law relationship of master and servant exists, unless and until it is shown to the satisfaction of the department that:
      (A) the individual has been and will continue to be free from control and direction in connection with the performance of the service, both under the individual's contract for the performance of service and in fact;
      (B) the service is performed either outside the usual course of business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and
      (C) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.

      . AS 23.20.525(a)(10).

      . See Tachick Freight Lines, Inc. v. State, Dep't of Labor, 773 P.2d 451, 453 (Alaska 1989).

      . See Penick v. Employment Sec. Dep't, 82 Wash.App. 30, 917 P.2d 136, 142 (1996) (independently reviewing legal question of whether contract drivers provided "personal service" to trucking company).

      . See Employees Ass'n/AFSCME Local 52, 923 P.2d at 22.

      . Guin v. Ha, 591 P.2d 1281, 1291 (Alaska 1979).

      . See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Keiner v. City of Anchorage, 378 P.2d 406, 411 (Alaska 1963)). We determine only whether such evidence exists and do not choose between competing inferences or evaluate the strength of the evidence. See id.

      . See Penick, 917 P.2d at 142 ("To fit within the definition of personal services, the work of the contract drivers must clearly have been performed for [the trucking company], or for its benefit.").

      . - Black's Law Dictionary 1372 (7th ed.1999).

      . See Penick, 917 P.2d at 142 ("As the transportation of goods necessarily requires the services of truck drivers, it is clear that [the trucking company] directly used and benefited from the drivers' services.").

      . See Black's Law Dictionary 187.

      . See 12 Am.Jur.2d Brokers § 1, at 632-34 (1997).

      . AS 23.20.525(a)(10).

      . See Tachick Freight Lines, 773 P.2d at 453 ("[It is evident from the statutory requirement of a showing 'to the satisfaction of the department' that the Department of Labor is vested with broad discretion in deciding whether an 'employment' relationship exists. We can only reverse the commissioner's decision if we find that he abused this discretion.") (quoting Clayton v. State, 598 P.2d 84, 86 (Alaska 1979)). This standard differs from our usual review of an agency's factual findings for substantial evidence. See Handley, 838 P.2d at 1233. Cf. Penick, 917 P.2d at 141 (reviewing Washington Employment Security Department Commissioner's factual findings regarding employment determination for substantial evidence, but affording "great deference.").

      . Van Hatten testified that he did not supervise or direct the drivers, but he also testified that he retained the power to terminate the drivers for cause, although he had never done so.

      . AS 23.20.525(a)(10)(B).

      . AS 23.20.525(a)(10)(C).

      . See Tachick Freight Lines, 773 P.2d at 453.

      . See AS 23.20.525(a)(10)(C).