Dize v. Ass'n of Md. Pilots

• Decision Date: 31 May 2012
• Docket Number: Sept. Term, 2010.,No. 26,26
• Citation: 44 A.3d 1033,205 Md.App. 176
• Parties: William S. DIZE v. ASSOCIATION OF MARYLAND PILOTS.
• Court: Court of Special Appeals of Maryland

205 Md.App. 176

44 A.3d 1033

William S. DIZE

v.ASSOCIATION OF MARYLAND PILOTS.

No. 26, Sept. Term, 2010.

Court of Special Appeals of Maryland.

May 31, 2012.

Michael H. Bereston, Annapolis, MD, and Robert E. Joyce, Baltimore, MD, all on the brief, for Appellant.

James W. Bartlett, III and Alexander M. Giles (Richard A. Tabuteau, Semmes, Bowen, & Semmes, on the brief) Baltimore, MD, for Appellee.

Panel: GRAEFF, HOTTEN and RAYMOND G. THIEME, JR., (Retired, Specially Assigned), JJ.

GRAEFF, J.

William S. Dize, appellant, filed a claim in the Circuit Court for Baltimore City against his employer, the Association of Maryland Pilots (the “Association”), appellee, pursuant to the Jones Act, 46 U.S.C. § 30104 (2006),¹ after he was diagnosed with silicosis of the lungs. In his claim, Mr. Dize attributed his condition to the Association's negligence in failing to provide him with adequate protective equipment to safely perform a sandblasting project that took place in 2007. Both parties filed motions for summary judgment, and the court granted summary judgment in favor of the Association.

On appeal, Mr. Dize presents two questions for our review,² which we have consolidated and rephrased as follows:

Did the circuit court err in granting the Association's motion for summary judgment after finding, as a matter of law, that Mr. Dize was not a seaman under the Jones Act?

For the reasons set forth below, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

On May 22, 2008, Mr. Dize filed a claim against the Association in the Circuit Court for Baltimore City pursuant to the Jones Act.³ He alleged that, during the first week of June 2007, while employed by the Association, he was “assigned to sandblast old paint from the bottom of the Annapolis Pilot” while the boat was dry-docked. The Association provided him and the other crew members with safety equipment, including safety suits, masks, and helmets to perform the task, but Mr. Dize was unable to wear the safety equipment because he was claustrophobic. The Association was aware of his condition, but the Association insisted that he participate in the sandblasting project or be terminated. Mr. Dize wore the mask and helmet “as much as possible during the work, which went on for approximately one week.” ⁴

Mr. Dize was diagnosed with silicosis of the lungs on January 14, 2008. He maintained that the Association negligently caused his injuries by: (1) failing “to provide [a] safe place in which to work”; (2) failing “to properly provide adequate safety equipment and/or facilities to prevent [his] exposure to harmful agents from sandblasting”; (3) failing to warn him of the dangerous conditions associated with performing his duties; (4) failing “to conduct proper inspections of the pier and/or appurtenant facilities aforesaid in order to discover and remedy said hazardous condition”; (5) failing “to condemn the Pier as appropriate”; (6) failing “to provide adequate lighting to allow [him] to perform his job in a safe and reasonable manner”; (7) providing him “an unseaworthy vessel”; (8) failing “to provide adequate manpower to allow [him] to perform his job in a safe and reasonable manner”; and (9) engaging in conduct that was otherwise “careless, reckless and negligent.” Mr. Dize asserted that, as a result of the Association's negligence, he sustained injuries to his “lungs, neck, mouth, nose, airways and other internal organs.” Additionally, he alleged damage to his nervous system, as well as great physical pain and mental anguish. Mr. Dize estimated that his lost earning potential was between $48,000 and $62,000 annually, and he sought $5,000,000 in damages.

On July 16, 2008, the Association filed its answer to Mr. Dize's claim. It asserted that the circuit court lacked subject matter jurisdiction because Mr. Dize was not a seaman for purposes of the Jones Act, but rather, Mr. Dize's injuries were covered by the Longshore and Harbor Workers' Compensation Act or the Maryland Workers' Compensation Act. It further denied any negligence on its part and alleged that any injuries sustained by Mr. Dize were caused by his own contributory negligence, insubordination, a preexisting condition, or the acts of others.⁵

On November 30, 2009, Mr. Dize filed an amended claim, in which, among other things, he alleged that the Association had “failed to adhere to federal and state occupational safety standards” and that it had wilfully failed to pay “maintenance and cure at the rate of fifteen dollars ($15.00) a day as required.” He demanded $10,000,000 in compensatory damages, $5,000,000 in punitive damages, and reasonable attorneys' fees.

On December 14, 2009, the Association filed a motion to strike Mr. Dize's amended complaint, arguing that it would be unduly prejudicial to allow Mr. Dize to add a maintenance and cure claim more than a year after litigation had commenced. The court ultimately granted the motion to strike the amended complaint.

On January 15, 2010, the Association filed a Motion for Summary Judgment, alleging that Mr. Dize did not spend 30% of his time working onboard a vessel, as required to qualify as a seaman under the Jones Act. It asserted that there was no dispute of material fact that Mr. Dize did not qualify as a Jones Act seaman, and the Association was entitled to judgment as a matter of law. In support, the Association submitted an affidavit signed by James Merryweather, Mr. Dize's supervisor, which described Mr. Dize's responsibilities as follows:

Mr. Dize's duties included running the office at [the Association's Pilot Transfer Station (“PTS”) ], enforcing Association policies and work rules, dealing with local vendors, managing the shop, dispatching pilots and boat operators, making runs on (operating) the pilot launches, supervising the housekeeping crew, and overseeing routine and special projects that occurred during his one-week watch. Mr. Dize was a salaried employee who worked one week on, one week off. During the week he was on, Mr. Dize was on duty twenty-four hours a day, seven days a week. During his week on, Mr. Dize was the sole manager at the Station and was supervising other employees.

Mr. Merryweather's affidavit detailed the hours that Mr. Dize spent operating pilot launches. It further stated:

When he was not on the water, Mr. Dize spent no more than half of an hour a day on average ... while ashore in the service of vessels he operated, doing such things as maintenance, repairs, fueling, supplying, and other duties relating to his work as a launch operator. The rest of his time on duty was spent doing ... other tasks ... that did not relate to his work as a launch operator. According to the records of the Association, Mr. Dize worked 26 weeks, seven days a week, in 2006 and 2007. Accordingly, Mr. Dize worked no more than a total of 91 hours each of those years while ashore in the service of the vessels he operated.

On February 2, 2010, Mr. Dize filed his motion opposing the Association's Motion for Summary Judgment. Despite filing his own motion for summary judgment several weeks earlier, he alleged that “[t]here are genuine issues as to material fact to be submitted to the jury as to whether [Mr. Dize] is a Jones Act seaman for the purposes of this act.” Mr. Dize stated that he had been a Pilot Launch Operator or crew member for 21 years prior to his injury in 2007, and he “was required to ride, operate and maintain the [Association's] pilot launch (or group of launches).” ⁶ Mr. Dize provided percentages of his time spent on the water for 1994 through 2007; these percentages varied, but the average was well under 20%.⁷

Mr. Dize described his maintenance duties as Assistant Station Manager as including “general maintenance of the buildingson the station property itself as well as painting boats, sanding them, filling them in, painting them and changing their props, replacing worn zincs, changing rotors and shafts, changing rub rails and the fueling of all the launches.” In the affidavit attached to his motion, Mr. Dize stated that he spent at least three to four hours each day “performing these shoreside support tasks.” ⁸ Mr. Dize asserted that he “did not have a passive desk job as a shore-side manager.” He explained:

Our longest days, over four (4) or more hours a day, would be spent working on the boats when they were pulled out of the water and drydocked in the spring and the fall for Re–Fit projects. My regular maintenance duties were sanding, puttying, painting and re-gelling the boats. The most time consuming tasks [were] pulling off and installing rub rails on the sides of these boats.... Sometimes we would pull out engines and overhaul them, as well as re-deck the boats and gut and rebuild the cabins.

The affidavit stated that, “in addition to my time on the water and the fleet support activities I participated in as recorded by the maintenance logs for each of the pilot launches,” Mr. Dize spent considerable time on the re-fit of various pilot launches: 110 hours in the fall of 2002 through the spring of 2003; 210 hours through January 2004; an additional 148 hours through December 2004; 219 hours from January to August 2005; 200 hours from October of 2005 through the spring of 2006; and 100–150 hours on a repair project in 2005, which involved painting and hull work. Mr. Dize stated that his work was “in support of the fleet of pilot launches in navigation,” and he “spent practically 100% of his time in the service of the fleet of pilot launches.”

On February 4, 2010, the Association filed its opposition to Mr. Dize's Motion for Summary Judgment. It alleged that there was no dispute that Mr. Dize spent only “a small fraction of his working time on board a vessel,” the relevant inquiry for a determination of seaman status. It noted that, although its calculations of Mr. Dize's “times on the water” in 2006 and 2007 did not “exactly match” Mr. Dize's calculations, even using Mr....