Dean v. Fishing Co. of Alaska

• Decision Date: 05 March 2012
• Docket Number: No. 66075–6–I.,66075–6–I.
• Citation: 272 P.3d 268,166 Wash.App. 893,2012 A.M.C. 682
• Parties: Ian DEAN, Appellant, v. The FISHING COMPANY OF ALASKA, INC., and Alaska Juris, Inc., Respondents.
• Court: Washington Court of Appeals

166 Wash.App. 893

2012 A.M.C. 682

272 P.3d 268

Ian DEAN, Appellant,

v.The FISHING COMPANY OF ALASKA, INC., and Alaska Juris, Inc., Respondents.

No. 66075–6–I.

Court of Appeals of Washington, Division 1.

March 5, 2012.

John W. Merriam, Attorney at Law, Seattle, WA, for Appellant.

Megan Elizabeth Blomquist, Michael Alan Barcott, Attorney at Law, Seattle, WA, for Respondents.

LEACH, A.C.J.

[166 Wash.App. 895] ¶ 1 In this case of first impression, we must decide whether the usual summary judgment standard applies to a seaman's pretrial motion to reinstate maintenance and cure. Ian Dean appeals a trial court decision denying his pretrial motion. He contends that a more lenient standard should apply given the solicitude courts have traditionally afforded seamen seeking compensation for maritime injuries. While we are sensitive to this special solicitude, we hold the trial court correctly applied the summary judgment standard to deny Dean's motion.

¶ 2 Dean also claims the trial court erred by denying his motion to compel discovery asking if his former employer, the Fishing Company of Alaska (FCA), conducted surveillance of him. We do not reach this issue as the parties stipulated to a final judgment in favor of FCA. Because the trial court properly denied Dean's summary judgment motion, we affirm.

FACTS

¶ 3 Dean worked aboard the FCA vessel F/T Alaska Juris as a fish processor in May and June 2006. According to Dean, who is six feet three inches tall, he worked 16 to 18 hours per day in a confined space with a ceiling height of six feet, requiring him to keep his neck constantly bent. Once on land, Dean sought medical treatment at the Seattle Hand Surgery Group for “numbness and tingling” in his hands and neck pain. The doctor there concluded that Dean had “possible bilateral carpal tunnel syndrome” or cervical radiculopathy. Between 2006 and 2009, Dean saw several doctors, including a hand specialist, a neurologist, and an orthopedist. Dean received carpal tunnel release surgery in 2008 and 2009. Dean was also diagnosed with myotonia congenita, a neurological condition unrelated to his time aboard the vessel. FCA initially paid maintenance and cure to compensate Dean for his medical and daily living expenses.

¶ 4 The record demonstrates that during the time frame at issue, Dean consistently complained of neck pain to his doctors. In May 2008, Dean's neurologist recommended physical therapy for his neck. In August 2008, Dean's orthopedist examined him and opined, “I am not certain that there are any curable recommendations for the neck. I have recommended light massage, soaks, and gentle range of motion.” Dean, however, did not undergo treatment to alleviate the symptoms in his neck.

¶ 5 In June 2009, Dean saw Dr. Alfred Aflatooni, who diagnosed him with “cervical radiculopathy, bilateral, with weakness of the neck and arms.” In Aflatooni's opinion, Dean's neck injury required “further neurological consultation[,] ... including MRI [magnetic resonance imaging] of his cervical and thoracic region with ... EMG [electromyography] and nerve conduction studies.” In July 2009, an EMG was performed and analyzed. No treatment recommendations were made for Dean's neck at that time.

¶ 6 In August 2009, Dean underwent an independent medical examination by Dr. Thomas Williamson–Kirkland at FCA's request to determine whether Dean had a neck injury subject to FCA's maintenance and cure obligation. Dr. Williamson–Kirkland could find “no evidence in the medical records or my examination that any of the symptoms Mr. Dean is currently experiencing in his neck are related to his work aboard the vessel.” Because his examination yielded normal results, Dr. Williamson–Kirkland had no recommendations for treatment.

¶ 7 In September 2009, FCA discontinued payments to Dean for maintenance and cure. It based its decision on Dr. Williamson–Kirkland's findings, the lack of evidence connecting Dean's neck symptoms to his work for FCA, and the absence of curative treatment recommendations. Dean sued FCA in King County Superior Court, seeking compensation under the Jones Act ¹ and general maritime law.

¶ 8 Dean moved for a pretrial reinstatement of maintenance and cure. Applying the usual CR 56 summary judgment standard, the trial court denied Dean's motion because “[p]laintiff has failed to show that no genuine issue of material fact exists as to his entitlement to maintenance and cure such that he is entitled to judgment as a matter of law.”

¶ 9 Dean then filed a motion to compel a discovery response to the interrogatory: “Has defendant or anyone acting on its behalf conducted a surveillance of the plaintiff or engaged any person or firm to conduct a surveillance of the plaintiff or his/her activities?” FCA objected, asserting that the work product doctrine protected the information from discovery. The trial court denied Dean's motion.

¶ 10 The parties engaged in arbitration. Following arbitration, they filed a joint motion for entry of judgment in FCA's favor, stipulating that the outcome of this appeal would determine the prevailing party. The parties also “agreed ... that [they] will jointly request that appellate courts review the trial judge's ruling on the discoverability of surveillance films, notwithstanding the fact that trial de novo in this matter has been forgone by this stipulation.” The trial court entered judgment for FCA, and Dean appeals.

ANALYSIS

¶ 11 “The United States Constitution extends the judicial power of the federal courts ‘to all cases of admiralty and maritime jurisdiction,’ preserving the general maritime law as a species of federal common law.” ² Congress has given federal courts exclusive jurisdiction over all admiralty or maritime cases “saving to suitors in all cases all other remedies to which they are otherwise entitled.” ³ State courts therefore have jurisdiction to consider maritime actions under the “saving to suitors” clause, “provided that the state court proceeds in personam (here, ‘at law’) and not in rem (here ‘in admiralty’).” ⁴ Once a plaintiff elects to proceed in state court under the “saving to suitors” clause, federal substantive law and state procedural law apply.⁵

¶ 12 Regardless of fault, maritime common law requires a shipowner to pay a seaman a daily subsistence allowance (maintenance) and costs associated with medical treatment (cure) when the seaman becomes ill or injured in the service of a vessel.⁶ A seaman must establish his or her right to maintenance and cure by a preponderance of the evidence.⁷ Once proven, the entitlement to maintenance and cure continues until a seaman reaches “maximum cure,” the point at which the condition becomes “fixed and stable.” ⁸ “The employer bears the burden of proving that maximum cure has occurred.” ⁹ In Vaughan v. Atkinson,¹⁰ the United States Supreme Court decreed that any ambiguities or doubts regarding payment of a seaman's entitlements must be resolved in favor of the seaman.

¶ 13 Here, the parties agree that the medical opinions of Dr. Aflatooni and Dr. Williamson–Kirkland create a factual dispute concerning Dean's entitlement to maintenance and cure for his neck complaints. However, Dean argues that this dispute should not preclude pretrial reinstatement of maintenance and cure because all ambiguities regarding his entitlement to maintenance and cure should be resolved in his favor. He therefore contends that the trial court erred by applying the usual summary judgment standard to resolve his motion. This involves a question of law, which we review de novo.¹¹

¶ 14 In Buenbrazo v. Ocean Alaska, LLC,¹² Judge Coughenour noted that “obvious tension exists between the summary judgment standard, which requires that all doubts be resolved in favor of the non-moving party, and the canon of admiralty law, which provides that all doubts be resolved in favor of the seaman.” This tension has led to inconsistencies in the way that federal courts have resolved pretrial motions for maintenance and cure.¹³ To date, neither the Ninth Circuit nor the United States Supreme Court has announced a standard under which courts should review pretrial motions seeking maintenance and cure.¹⁴ Therefore, we find instructive several unpublished decisions from the United States District Court for the Western District of Washington.¹⁵

¶ 15 In Buenbrazo, the plaintiff moved to compel maintenance and cure. ¹⁶ As here, the plaintiff there argued that his entitlement should be resolved using a more lenient standard than that used for summary judgment. The court disagreed, noting its skepticism that Vaughan “was designed to torpedo the well-established summary judgment procedure.” ¹⁷ Further, the court stated, “Disregarding genuine issues of material facts ... prior to trial before each party has had an opportunity to make their case places too heavy a thumb on the scale in favor of the seaman.” ¹⁸ The court concluded that “in spite of the canon of admiralty law that all doubts and ambiguities should be resolved in favor of the seaman, the summary judgment standard should be applied to a pre-trial motion to compel maintenance and cure.” ¹⁹ Because a genuine issue of material fact existed as to whether the plaintiff suffered injury while in the service of the vessel, the court denied the motion to compel maintenance and cure.²⁰

[166 Wash.App. 901] ¶ 16 Similarly, in Mabrey v. Wizard Fisheries, Inc.,²¹ the plaintiff moved pretrial to compel the defendant to pay cure to treat carpal tunnel syndrome (CTS). Again, the parties disputed what standard the court should apply. The court concluded that the summary judgment standard should apply because (1) neither the Supreme Court nor the Ninth Circuit have provided guidance; (2) the local rules and the supplemental admiralty rules do not provide an alternative procedure; (3) the Ninth Circuit has affirmed a district court's refusal to compel maintenance and cure due to the existence of genuine issues of material...