De Court v. Beckman Instruments, Inc.

• Court: California Court of Appeals
• Writing for the Court: COLOGNE; GERALD BROWN, P.J., and AULT
• Citation: De Court v. Beckman Instruments, Inc., 108 Cal.Rptr. 109, 32 Cal.App.3d 628 (Cal. App. 1973)
• Decision Date: 25 May 1973
• Parties: ., Plaintiffs and Appellants, v. BECKMAN INSTRUMENTS, INC., Defendant and Respondent. Civ. 11388. Court of Appeal, Fourth District, Division 1, California

Page 109

108 Cal.Rptr. 109

32 Cal.App.3d 628

Shirley De COURT et al., Plaintiffs and Appellants, v. BECKMAN INSTRUMENTS, INC., Defendant and Respondent.

Civ. 11388.

Court of Appeal, Fourth District, Division 1, California.

May 25, 1973.

Rehearing Denied June 11, 1973.

Hearing Denied July 25, 1973.

Shirley De Court, in pro se.

[32 Cal.App.3d 630] McInnis, Fitzgerald, Rees & Sharkey and Laurence L. Pillsbury, San Diego, for defendant and respondent.

OPINION

COLOGNE, Associate Justice.

Plaintiffs appeal from a summary judgment entered in favor of Beckman Instruments, Inc., in an action for damages for wrongful death brought under the Jones Act (46 U.S.C.A. § 688). ¹

The case raises the question of the legal effect of a California Workmen's Compensation Appeals Board award on the ability of the party receiving the award to subsequently recover under the federal maritime law.

The plaintiffs are the widow (De Court) ² and three minor children of William A. De Court (decedent), who died August 5, 1970, while testing underwater diving equipment in the sea one to two miles off the shore of Cozumel, an island near Yucatan, Mexico. Beckman hired decedent five days before his death to help develop and produce a new self-contained underwater breathing apparatus invented by Walter Starck and called an electrolung. Sent via airplane to Cozumel by Beckman to meet Starck and become familiar with the electrolung, decedent was quartered on the island. He worked in the sea from the skiff of a research vessel known as the 'El Torito,' which Starck commanded. Starck was under contract to Beckman as a consultant. After three days in Cozumel decedent, using the electrolung and in the company of Peter Hopper, an employee of Beckman, dove from the skiff, reached a depth of 250 feet and was never seen again.

Decedent was not assigned any duties, nor did he perform any duties, in connection with navigation, operation, maintenance or management of the El Torito or the El Torito's skiff and the El Torito was not owned by Beckman according to uncontradicted declarations filed in support of the motion for summary judgment.

Approximately one month after the decedent's death, an agent of Beckman informed De Court she was eligible for State Workmen's Compensation benefits and if she would supply the requested information and sign necessary papers, Beckman's insurance carrier would process her claim. She then received from the insurer various papers which she filled out and signed where indicated. Before doing so, however, she took the papers to her attorney who stated the forms were proper and in order. The attorney did not mention applying for state compensation might affect her Jones Act rights. Other than the one conference, the attorney did not advise or otherwise represent her in the state compensation matter. She returned the various papers to the insurer and it handled the processing of her claim.

Upon application for adjudication of the state compensation claim dated September 17, 1970, and stipulations with request for award executed November 14, 1970, the state compensation matter was submitted to a referee.

On the status of decedent and his relationship to Beckman the Stipulated Findings and Award of the Referee state only decedent died as a proximate result of an injury arising out of and occurring in the course of his employment at Cozumel, Yucatan, Mexico, under a contract of hire which was made in the state by Beckman. The Application for Adjudication of Claim, executed by a representative of Beckman and its insurer, makes similar allegations and among other things states decedent was drowned 'testing underwater diving equipment, current carried him deeper--body and equipment never recovered.' The stipulations with request for award contain a similar statement, and, in addition, make a printed recital that 'both the employer and the employee were subject to the provisions of the Labor Code of the State of California.'

De Court received the first payment under the state compensation award about the first of October 1971. ³

In November 1970, De Court retained counsel other than the first attorney to prosecute a complaint for wrongful death under the Jones Act. The complaint was filed April 12, 1971.

Under the pleadings, plaintiffs alleged Beckman owned, managed, operated, navigated and controlled the vessel aboard which the deceased was employed as a seaman; the vessel was on the navigable waters off the island of Cozumel near Yucatan, Mexico; decedent was a seaman; and Beckman so carelessly and negligently managed, supervised and controlled decedent in the course and scope of his employment as to cause his death. The answer raised the affirmative defense a proceeding in the Workmen's Compensation Appeals Board of the State of California and the stipulated award for compensation to plaintiffs by reason of the death of decedent made on or about November 19, 1970, barred further civil litigation of the wrongful death lawsuit because of the doctrines of res judicata, election of remedies, and estoppel.

The parties stipulated to determination of the motion for summary judgment solely on the question whether the action was barred under the doctrine of res judicata, merger, and estoppel by reason of the prior workmen's compensation award. If the motion was denied on that basis, it was the understanding a continuance of about four months would be granted for the purpose of pursuing additional discovery proceedings and filing declarations on the other issues raised as a basis for the summary judgment. On this understanding the trial court heard the arguments on this first issue and granted Beckman a summary judgment making the other issues moot.

The Jones Act ⁴ is applicable only if, among other things, a 'seaman' is involved and applies only with respect to the liability of 'owners' of vessels. The status of a person as a 'seaman' or an 'owner' is ordinarily a matter determinable only by retailed examination of the facts of the particular case. (See Butler v. Whitemen, 356 U.S. 271, 78 S.Ct. 734, 2 L.Ed.2d 754; Hudgins v. Gregory, 219 F.2d 255, 258.) The act has been liberally interpreted to extend rather than restrict the traditional protection of seamen (Soucie v. Trautwein Bros., 275 Cal.App.2d 20, 24, 79 Cal.Rptr. 671).

The substantive law as developed in the federal cases is controlling of Jones Act cases filed in state courts. (See Garrett v. Moore-McCormack Co., 317 U.S. 239, 245, 63 S.Ct. 246, 87 L.Ed. 239; Intagliata v. Shipowners & Mer. Etc. Co., 26 Cal.2d 365, 375--376, 159 P.2d 1; Smith v. Union Oil Co., 241 Cal.App.2d 338, 342--343, 50 Cal.Rptr. 499.)

The courts have held the applicability of the maritime law in cases within maritime jurisdiction is exclusive and thus the Industrial Accident Commission ⁵ has no jurisdiction to award compensation in these cases (London Guarantee & Accident Co. v. Industrial Acc. Com'n, 279 U.S. 109, 49 S.Ct. 296, 73 L.Ed. 632; Occidental Ind. Co. v. Ind. Acc. Com., 24 Cal.2d 310, 149 P.2d 841). Accordingly, in Occidental Ind. Co. v. Ind. Acc. Com., Supra, 24 Cal.2d 310, 149 P.2d 841, the California Supreme Court decided the remedies provided by the Workmen's Compensation Law are not available concurrently with the remedies under the Jones Act and maritime law which supersedes the operation of the state law. The court held the state and federal remedies to be mutually exclusive and annulled an award of workmen's compensation for lack of jurisdiction after the Commission specifically found the claimant was not a seaman and the injury did not occur either on a vessel or navigable waters.

The United States Supreme Court in the London Guarantee & Accident Co. case, Supra, 279 U.S. 109, 49 S.Ct. 296, 73 L.Ed. 632, similarly overturned an express finding of the Commission that the decedent in the case was not engaged in maritime employment and both he and his employer were subject to the state compensation act. (See also The Linseed King, 285 U.S. 502, 52 S.Ct. 450, 76 L.Ed. 903.) ⁶

Beckman contends if there is a final determination as to the matter of coverage (i.e., of jurisdiction) by either the Board or the superior court, such determination will be res judicata in subsequent proceedings before the other tribunal between the same parties or those privy to them (Scott v. Industrial Acc. Com., 46 Cal.2d 76, 83, 293 P.2d 18; Unruh v. Truck Insurance Exchange, 7 Cal.3d 616, 633--634, 102 Cal.Rptr. 815, 498 P.2d 1063).

Further, citing section 5302 of the Labor Code, ⁷ Beckman argues when the Board made an award it impliedly and necessarily found the decedent was not a seaman, the matter was not otherwise subject to the Jones Act and the Board had jurisdiction to make the award (Unruh v. Truck Insurance Exchange, Supra, 7 Cal.3d 616, at page 637, 102 Cal.Rptr. 815, 498 P.2d 1063).

The question we must decide is whether application of the latter rules to the particular case before us precludes plaintiffs' action. ⁸ We hold plaintiffs' action is not barred by that award.

Neither the Unruh nor Scott case, Supra, 7 Cal.3d 616, 102 Cal.Rptr. 815, 498 P.2d 1063 and 46 Cal.2d 76, 293 P.2d 18, dealt with admiralty law. In both cases the issue was whether the conditions of compensation for an injury were present. Resolution of this issue determined whether the Board had exclusive jurisdiction to grant relief or the superior court was vested with such jurisdiction. If this single factor, i.e., conditions of compensation, was present, the superior court could not grant relief. If it was not present, the Board could not grant relief (Lab.Code §§ 3600, 3601). The superior court and the Board each had concurrent jurisdiction to determine its own jurisdiction by resolving this single issue of conditions of compensation. Once this issue was determined by the tribunal first assuming jurisdiction of this issue, the determination is res judicata in proceedings in the other tribunal with...