Figueroa v. Campbell Industries

• Decision Date: 13 January 1995
• Docket Number: 93-55945,Nos. 93-55936,s. 93-55936
• Citation: 45 F.3d 311
• Parties: Joseph FIGUEROA, Plaintiff-Appellee-Cross-Appellant, v. CAMPBELL INDUSTRIES, Defendant-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 311

45 F.3d 311

1995 A.M.C. 793

Joseph FIGUEROA, Plaintiff-Appellee-Cross-Appellant, v. CAMPBELL INDUSTRIES, Defendant-Appellant-Cross-Appellee.

Nos. 93-55936, 93-55945.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 9, 1994.

Decided Jan. 13, 1995.

Daniel B. MacLeod, Alford & MacLeod, San Diego, CA, for defendant-appellant-cross-appellee.

Preston Easley, Law Offices of Preston Easley, San Pedro, CA, for plaintiff-appellee-cross-appellant.

Appeals from the United States District Court for the Southern District of California.

Before: BROWNING, and GOODWIN, Circuit Judges, and QUACKENBUSH, District Judge. ^*

QUACKENBUSH, District Judge:

Defendant Campbell Industries appeals the district court judgment following a jury verdict in favor of Plaintiff Joseph Figueroa under the Jones Act, 46 U.S.C.App. Sec. 688, and Mr. Figueroa cross-appeals the trial court's judgment setting off, from the verdict, the amount of benefits Mr. Figueroa had previously received under state workers' compensation statutes and the Longshore & Harbor Workers' Compensation Act, 33 U.S.C. Sec. 901 et seq.

The district court had original jurisdiction pursuant to 28 U.S.C. Sec. 1333. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We

affirm the district court's judgment, except as modified in a separate unpublished memorandum disposition filed with this opinion.

FACTS AND PRIOR PROCEEDINGS

Campbell Industries operates a shipyard at San Diego, California, where it builds and repairs ocean-going vessels. The Plaintiff, Joseph Figueroa, was a waysman (shipyard worker) and tugboat operator employed by Campbell Industries when he was injured on May 27, 1987 aboard the "Guppy," a tug boat owned by Campbell Industries. The GUPPY was used in connection with ship construction and repair, and was tied to the dock at the time of the accident.

Shortly after his injury, Mr. Figueroa filed claims for state workers' compensation benefits with the California Workers Compensation Appeals Board, and for benefits under the Longshore & Harbor Workers' Compensation Act (LHWCA) with the United States Department of Labor, Office of Workers' Compensation Programs. On December 27, 1988 and March 21, 1989 respectively, these claims were compromised and settled. The settlement was reflected both in a Final Compensation Order issued by the United States Department of Labor, and in a Compromise and Release approved by a judge of the California Workers' Compensation Appeals Board. As a result, Mr. Figueroa received the following benefits:

                Medical Expenses      $ 9,512.59
                Temporary Disability    5,464.70
                Permanent Disability   12,000.00
                                      ----------
                               Total  $26,977.29
                

On November 1, 1989, Mr. Figueroa filed the present action pursuant to the Jones Act, 46 U.S.C.App. Sec. 688, and general maritime law. The complaint sought (1) unspecified general damages; (2) damages for medical expenses incurred; (3) damages for lost earnings; and (4) costs of suit. Accordingly, the pretrial order specified that any award would be reduced by the $26,977.29 already received in federal and state workers' compensation benefits.

Prior to the Jones Act jury trial, counsel for Mr. Figueroa waived all claims except those for pain and suffering since he had recovered his medical expenses and lost wages in the LHWCA proceeding. The only evidence regarding damages presented to the jury was that relating to Plaintiff's pain and suffering. The jury found in favor of Plaintiff and awarded $35,000 in damages.

In a special verdict, the jury first found that Mr. Figueroa was a "member of the crew and a seaman of the vessel at the time he was injured." The jury also found that Campbell Industries was responsible for 90% of Mr. Figueroa's damages and that Mr. Figueroa was 10% contributorily negligent. Therefore, the $35,000.00 award was reduced to $31,500.00. The district court then offset that award by the $26,977.29 benefits received under the California workers' compensation statute and the LHWCA, as specified in the pretrial order, and entered a final judgment awarding Plaintiff $4,522.71.

Campbell Industries contends that any recovery under the Jones Act is precluded by plaintiff's recovery under the LHWCA, and by the release signed by Mr. Figueroa under the California workers' compensation statute. Mr. Figueroa cross-appeals, contending that the $31,977.29 judgment should be offset only by the $12,000.00 he received as damages for his permanent disability. Here, we address only Campbell Industries' argument that Mr. Figueroa is precluded from recovering under the Jones Act by his recovery under the LHWCA. We deal with the release issue and the offset issue in a memorandum disposition accompanying this opinion.

DISCUSSION

The Jones Act and the LHWCA both provide a remedy to injured maritime workers. However, each statute specifies different maritime workers to be within its reach. The Jones Act provides, in pertinent part, that "[a]ny seaman who shall suffer personal injury in the course of his employment, may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply...." 46 U.S.C.App. Sec. 688(a).

The LHWCA provides benefits to an injured employee for medical expenses and lost wages, but has no provision for general pain and suffering damages. It contains an exclusivity provision, which states, in part, that the liability of an employer "shall be exclusive and in place of all other liability of such employer to the employee." 33 U.S.C. Sec. 905(a). However, the term "employee" as defined in the LHWCA does not include "a master or member of a crew of any vessel." 33 U.S.C. Sec. 902(3)(G). Therefore, the LHWCA with its exclusionary provision does not apply to a "harbor worker who is also a 'member of a crew of any vessel,' a phrase that is a 'refinement' of the term 'seaman' in the Jones Act." Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 88, 112 S.Ct. 486, 491, 116 L.Ed.2d 405 (1991).

Campbell Industries argues that the final compensation order and the compromise and settlement in this case necessarily mean that a finding was made that Mr. Figueroa was not a "seaman," and, therefore, that he is not entitled to recover under the Jones Act. This argument was twice rejected by the district court as the subject of a Motion for Summary Judgment, or, in the alternative, Motion to Dismiss and a subsequent Motion for Judgment Notwithstanding the Verdict. Appellant Campbell Industries raises the issue again here.

It is clear that our decision in Gizoni v. Southwest Marine, Inc., 909 F.2d 385 (9th Cir.1990), and the Supreme Court opinion affirming that decision, Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 112 S.Ct. 486, 116 L.Ed.2d 405 (1991) control the decision here, and under Gizoni, appellant's argument must fail. The Supreme Court defined the issue before it as "whether a maritime worker whose occupation is one of those enumerated in the Longshore and Harbor Workers' Compensation Act (LHWCA) ... may yet be a 'seaman' within the meaning of the Jones Act ..., and thus be entitled to bring suit under that statute." Id., 502 U.S. at 85, 112 S.Ct. at 489. The Court answered that question in the affirmative.

Like Mr. Figueroa, Gizoni had submitted a claim for, and had received medical and compensation benefits from his employer pursuant to the LHWCA. He later sued his employer under the Jones Act, alleging that he was a seaman injured as a result of his employer's negligence. Both a panel of this court and the Supreme Court held that the exclusive remedy provisions of the LHWCA did not preclude Gizoni from pursuing his Jones Act claim.

Appellant's argument is based on the contention that in order to recover under the LHWCA, a longshoreman cannot be employed as a "master or member of the crew of a vessel," and therefore, also cannot be a "seaman" under the Jones Act, which is the very argument rejected in Gizoni:

However, this argument ignores the fact that some maritime workers may be Jones Act seamen performing a job specifically enumerated under the LHWCA.

... While in some cases a ship repairman may lack the requisite connection to a vessel in navigation to qualify for seaman status, ... not all ship repairmen lack the requisite connection as a matter of law. This is so because "it is not the employee's particular job that is determinative, but the employee's connection to the vessel." ... By its terms the LHWCA preserves the Jones Act remedy for vessel crewmen, even if they are employed by a shipyard. A maritime worker is limited to LHWCA remedies only if no genuine issue of fact exists as to whether the worker was a seaman under the Jones Act.

Id., 502 U.S. at 89, 112 S.Ct. at 492. (internal citations omitted).

Campbell Industries argues that the final compensation award in this case necessarily means a finding was implicitly made that Mr. Figueroa was not a "member of a crew" and not a "seaman," and that, therefore, Gizoni does not apply. In support of its argument, Appellant points to the language of the Supreme Court that "[i]t is by now 'universally accepted' that an employee who receives voluntary payments under the LHWCA without a formal award is not barred from subsequently seeking relief under the Jones Act." Gizoni, supra, 502 U.S. at 91, 112 S.Ct. at 493 (citing ...