Fawkner v. Atlantis Submarines, Inc.

• Decision Date: 23 February 2001
• Docket Number: No. CIV. 00-00267 SOM-LEK.,CIV. 00-00267 SOM-LEK.
• Parties: Duane Lawson FAWKNER, Plaintiff, v. ATLANTIS SUBMARINES, INC.; Atlantis Submarines Hawaii, Inc.; Atlantis Submarines Hawaii LP; In Personam, and M/V Ocean Twin O.N. 503928 and M/V Kapena, In Rem, Defendants.
• Court: Hawaii Supreme Court

Page 1127

135 F.Supp.2d 1127

Duane Lawson FAWKNER, Plaintiff, v. ATLANTIS SUBMARINES, INC.; Atlantis Submarines Hawaii, Inc.; Atlantis Submarines Hawaii LP; In Personam, and M/V Ocean Twin O.N. 503928 and M/V Kapena, In Rem, Defendants.

No. CIV. 00-00267 SOM-LEK.

United States District Court, D. Hawai`i.

February 23, 2001.

COPYRIGHT MATERIAL OMITTED

Jay Lawrence Friedheim, Honolulu, HI, for plaintiff.

Gregory Lesser, Lesser & Associates, Redondo Beach, CA, for defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

MOLLWAY, District Judge.

I. INTRODUCTION.

Plaintiff Duane Lawson Fawkner ("Fawkner") filed a First Amended Complaint against Defendants Atlantis Submarines, Inc., Atlantis Submarines Hawaii, Inc., Atlantis Submarines Hawaii LP, in personam, and M/V Ocean Twin O.N. 503928 and M/V Kapena, in rem (collectively "Atlantis") on October 27, 2000 ("First Amended Complaint"). The First Amended Complaint alleges that Fawkner was seriously injured while assisting a supervisor at Atlantis in moving an engine head over to a storage facility. Fawkner claims that Atlantis terminated his employment because he had been injured. Fawkner has sued Atlantis for Jones Act negligence, unseaworthiness, maintenance and cure, wrongful discharge, negligent infliction of emotional distress, and intentional infliction of emotional distress. Fawkner also seeks punitive damages based on Atlantis' conduct.

Atlantis has moved for partial summary judgment on Fawkner's wrongful discharge, negligent and intentional infliction of emotional distress, and punitive damages claims.¹ The court grants in part and denies in part Atlantis' motion for partial summary judgment, finding that: (1) Atlantis is entitled to summary judgment on the wrongful discharge claim because Atlantis was permitted by law to terminate Fawkner's employment when his contract expired by its own terms; (2) Atlantis is entitled to summary judgment on Fawkner's negligent infliction of emotional distress claim because that claim is factually unsupported; (3) Atlantis is entitled to summary judgment on Fawkner's intentional infliction of emotional distress claim to the extent the claim relates to the alleged wrongful termination, but not to the extent it relates to the maintenance claim; and (4) Atlantis is entitled to summary judgment on Fawkner's punitive damage claim.

II. BACKGROUND FACTS.

On November 23, 1999, Atlantis sent Fawkner a letter offering him a maintenance assistant/deck hand position at Atlantis' Maui Maintenance Department beginning December 1, 1999. See Letter from Dawn Marie Takebayashi to Fawkner dated November 23, 1999 ("Employment Agreement"), attached as Ex. 1 to Atlantis' Concise Statement of Facts in support of its Motion for Partial Summary Judgment ("Atlantis' CSF"). The letter stated that the offered position was "for a period of three months and" would "end on February 29, 2000." See id. On December 7, 1999, Fawkner signed the Employment Agreement acknowledging that he accepted and agreed to its terms. See id.

Fawkner began work at Atlantis on December 7, 1999. See Declaration of Eunice Lyons ("Lyons Dec.") ¶ 2, attached to Atlantis' CSF; Deposition of Fawkner ("Fawkner Depo.") at 54-57, attached to Plaintiff's Separate and Concise Statement of Facts in Support of Memorandum in Opposition to Defendants' Motion for Partial Summary Judgment Filed December 20, 2000 ("Fawkner's CSF"). Fawkner was assigned by Atlantis to perform maintenance work on M/V Ocean Twin O.N. 503928 and M/V Kapena. Fawkner claims that, on December 21, 2000, he was ordered to assist his supervisor at Atlantis, Dave Luckey, in moving an engine head to a storage facility. Fawkner says he injured his back in the process of moving the engine head. See Fawkner Depo. at 66-70.

Fawkner worked intermittently after his injury for a couple of weeks. See id. at 95-97, attached as Ex. 5 to Atlantis CSF. However, Fawkner re-injured his back in early February and eventually stopped working at Atlantis because of the back injury. See id. at 97.

Fawkner was paid his full hourly wage for the time that he actually worked at Atlantis. See Lyons Dec. ¶ 3. Before February 29, 2000, Fawkner was also paid maintenance wages of $22 per day plus a salary supplement equal to two-thirds of his salary for the time he was unable to work. See id.

On February 18, 2000, Atlantis sent Fawkner a letter reminding him that his employment with Atlantis would conclude on February 29, 2000. See Letter from Jim Walsh to Fawkner, dated February 18, 2000, attached as Ex. 2 to Atlantis' CSF. The letter informed Fawkner that Atlantis would still continue to pay $22 per day in maintenance wages and that Fawkner would continue to be eligible for maintenance wages and cure until he reached Maximum Medical Improvement. See id. The letter, however, also stated that Atlantis would discontinue the additional payments that supplemented Fawkner's Jones Act maintenance wages as of the day that Fawkner's employment was scheduled to end pursuant to the Employment Agreement, i.e., February 29, 2000. See id.

Fawkner's employment thereafter concluded on February 29, 2000. See Lyons Dec. ¶ 2. Since that time, Fawkner has received maintenance in the amount of $22 per day and continues to receive these maintenance payments to the present. See id. ¶ 3.

On April 11, 2000, Fawkner filed a Complaint in this court against Atlantis. In that initial Complaint, Fawkner brought claims for negligence under the Jones Act, 46 U.S.C. § 688, and for unseaworthiness, maintenance, and cure under general maritime law.

Fawkner filed a First Amended Complaint on October 27, 2000, adding claims for wrongful discharge, negligent and intentional infliction of emotional distress, and punitive damages. Atlantis has now moved for partial summary judgment on Fawkner's wrongful discharge, negligent and intentional infliction of emotional distress, and punitive damages claims.

III. STANDARD.

Summary judgment shall be granted when:

the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c); see Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. Id. at 322, 106 S.Ct. 2548. The burden initially lies with the moving party to identify for the court "those portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (footnote omitted). The nonmoving party may not rely on the mere allegations in the pleadings and instead must set forth "specific facts showing that there is a genuine issue for trial." Id. At least some "`significant probative evidence tending to support the complaint'" must be produced. Id. (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290-93, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)); Addisu, 198 F.3d at 1134 ("A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact"). "[I]f the factual context makes the non-moving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." California Arch'l Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348), cert. denied, 484 U.S. 1006, 108 S.Ct. 698, 699, 98 L.Ed.2d 650 (1988). Accord Addisu, 198 F.3d at 1134 ("There must be enough doubt for a `reasonable trier of fact' to find for plaintiffs in order to defeat the summary judgment motion").

However, when "direct evidence" produced by the moving party conflicts with "direct evidence" produced by the party opposing summary judgment, "the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact." T.W. Elec. Services, 809 F.2d at 631. All evidence and inferences must be construed in the light most favorable to the nonmoving party. Id. Inferences may be drawn from underlying facts not in dispute, as well as from disputed facts that the judge is required to resolve in favor of the nonmoving party. Id.

IV. ANALYSIS.

A. Wrongful Discharge.

In the First Amended Complaint, Fawkner asserts a claim under Hawaii law for wrongful discharge in violation of a clear mandate of public policy.² See Parnar v. Americana Hotels, Inc., 65 Haw. 370, 379-80, 652 P.2d 625, 630-31 (1982) (recognizing a cause of action in Hawaii for wrongful discharge in violation of a clear mandate of public policy). Under Hawaii law, "an employer may be held liable in tort where his discharge of an employee violates a clear mandate of public policy." Id. at 380, 652 P.2d at 631. "In determining whether a clear mandate of public policy is violated, courts should inquire whether the employer's conduct contravenes the letter or purpose of a...