Gibson v. Am. Constr. Co.

• Decision Date: 26 September 2017
• Docket Number: No. 49340-3-II.,49340-3-II.
• Citation: 200 Wash.App. 600,402 P.3d 928
• Parties: Jeremy GIBSON, Appellant. v. AMERICAN CONSTRUCTION COMPANY, INC., a Washington corporation, Respondent.
• Court: Washington Court of Appeals

200 Wash.App. 600

402 P.3d 928

Jeremy GIBSON, Appellant.

v.AMERICAN CONSTRUCTION COMPANY, INC., a Washington corporation, Respondent.

No. 49340-3-II.

Court of Appeals of Washington, Division 2.

September 26, 2017

Philip Albert Talmadge, Talmadge/Fitzpatrick/Tribe, 2775 Harbor Ave. S.W., Third Floor, Ste. C, Seattle, WA, 98126-2138, Zachary B. Herschensohn, Thornton Mostul Herschensohn PLLC, 1000 2nd Ave., Ste. 3200, Seattle, WA, 98104-1074, for Appellant.

Eric Robert McVittie, Markus Berndt Gustaf Oberg, Legros Buchanan & Paul PS, 4025 Delridge Way S.W., Ste. 500, Seattle, WA, 98106-1271, for Respondent.

PUBLISHED OPINION

Sutton, J.¶1 This case presents an issue of first impression in Washington—whether an injured maritime worker who accepts voluntary benefits and settles his claim under the Longshore and Harbor Workers' Compensation Act (LHWCA),¹ when there is no adjudication of his status as a non-seaman under the LHWCA, is barred from pursuing claims against the vessel owner for personal injuries under the Jones Act.² We hold that, because Jeremy Gibson's maritime worker status as a non-seaman was never adjudicated under the LHWCA and the compensation order did not expressly resolve this issue under the LHWCA, under Gizoni ,³ Gibson's Jones Act claims are not barred, and election of remedies, equitable estoppel, and collateral estoppel do not apply. Thus, we reverse the superior court's summary judgment dismissal order of Gibson's Jones Act claims, and remand for further proceedings consistent with this opinion.

FACTS

¶2 In August 2013, American Construction Company, Inc. (American), employed Gibson as a mechanic in its marine construction department. Gibson fell through a hatch while working on a crane barge moored at American's dock. He was treated for head, back, neck, arm, and leg injuries.⁴ Gibson continued to receive medical treatment over the next nine months and received medical payments from American.

¶3 In May 2014, Gibson quit working and filed a claim with the U.S. Department of Labor (Department) for disability and medical benefits under the LHWCA. American paid Gibson disability and medical benefits under the LHWCA from May 2014 to December 2015.

¶4 In December 2015, the parties agreed to settle the LHWCA claim, signed a settlement agreement, and submitted an application to the Department's district director for approval under 33 U.S.C. § 908(i) of the LHWCA.⁵ The parties agreed that Gibson contended that he suffered a work related injury, the claim was subject to the LHWCA, that a speedy resolution was in his best interest, and that by paying the agreed amount, American discharged its liability for the LHWCA claim.

¶5 The Department's district director approved the agreed settlement and signed a final compensation order in December 2015, closing Gibson's LHWCA claim. The compensation order stated in whole:

Pursuant to agreement and stipulation by and between the interested parties, and such further investigation in the above-entitled claim having been made as is considered necessary, and no hearing having been applied for by any party in interest or considered necessary by the District Director, the District Director makes the following:

FINDINGS OF FACT

1. That the claimant alleges accidental injury arising out of and in the course of employment with the employer on or about 08/08/2013.

2. That liability of the employer for compensation under the above cited Act was insured by the American Longshore Mutual Assn. Ltd.

3. The parties have agreed to settle the claim as outlined in the attached settlement agreement.

4. The District Director, pursuant to § 8(i) of the Longshore and Harbor Workers' Compensation Act and 20 CFR 702.243,⁶ finds the settlement adequate and not procured by duress.

ORDER

Pursuant to Section 8(i) of the Longshore and Harbor Workers' Compensation Act, the District Director having reviewed the attached agreement and stipulation by and between the interested parties hereby approves the agreed settlement. This approval effects a final disposition of the claim, discharging the liability of the employer and insurance carrier in accordance with the terms of the settlement. The employer and insurance carrier are hereby ordered to pay all amounts due.

Clerk's Papers at 41.

¶6 In March 2016, Gibson filed a Jones Act complaint against American for negligence, unseaworthiness, and vessel owner negligence for his 2013 injuries. In his complaint, he alleged that he was both a sea-based and land-based maritime worker. American filed a CR 12(b)(6) motion to dismiss based on failure to state a claim upon which relief can be granted and submitted declarations. American argued that the LHWCA compensation order precluded Gibson from bringing a Jones Act claim and asserted election of remedies, equitable estoppel, and collateral estoppel. Gibson responded that the compensation order did not resolve his maritime worker status because his status was never adjudicated in a formal hearing under the LHWCA. The superior court denied the motion to dismiss.

¶7 American filed a motion for reconsideration, asserting the same arguments. The superior court granted American's motion for reconsideration and dismissed Gibson's Jones Act claims with prejudice. Gibson appeals.

ANALYSIS

¶8 Gibson argues that the trial court erred in dismissing his Jones Act claims because (1) under Gizoni , the issue of his maritime worker status, non-seaman or seaman, was never adjudicated and the compensation order did not expressly resolve this issue under the LHWCA, (2) any LHWCA recovery he has received will be credited to his employer if he is successful in his Jones Act claims, and (3) election of remedies, equitable estoppel, and collateral estoppel do not apply to bar his Jones Act claims. We hold that, because Jeremy Gibson's maritime worker status as a non-seaman was never adjudicated under the LHWCA and the compensation order did not expressly resolve this issue under the LHWCA, under Gizoni , Gibson's Jones Act claims are not barred, and election of remedies, equitable estoppel, and collateral estoppel do not apply.

I. LEGAL PRINCIPLES

¶9 Dismissals under CR 12(b)(6) are proper "only where there is not only an absence of facts set out in the complaint to support a claim of relief, but there is no hypothetical set of facts that could conceivably be raised by the complaint to support a legally sufficient claim." Worthington v. Westnet, 182 Wash.2d 500, 505, 341 P.3d 995, 341 P.3d 995 (2015). If a party brings a motion to dismiss under CR 12(b)(6), but "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in [CR] 56." CR 12(b)(7). Declarations submitted in a CR 12(b)(6) motion are "matters outside the pleadings" that convert the CR 12(b)(6) motion into a summary judgment under CR56(c). Didlake v. State , 186 Wash.App. 417, 422, 345 P.3d 43, review denied , 184 Wash.2d 1009, 357 P.3d 667 (2015).

¶10 Here, the superior court considered facts beyond those stated in the complaint, including American's declarations. Therefore, we treat the superior court's dismissal order as a decision on a motion for summary judgment. CR 12(b)(7).

¶11 Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). "If reasonable minds can reach only one conclusion on an issue of fact, that issue may be determined on summary judgment." Sutton v. Tacoma Sch. Dist. No. 10 , 180 Wash.App. 859, 865, 324 P.3d 763 (2014). We review a superior court's decision on summary judgment de novo. Didlake , 186 Wash.App. at 422, 345 P.3d 43.

II. MARITIME WORKERS' COMPENSATION — THE LHWCA AND THE JONES ACT

¶12 "[M]aritime actions brought in Washington courts ‘are governed by federal maritime law.’ "

Tabingo v. Am. Triumph , LLC , 188 Wash.2d 41, 46, 391 P.3d 434 (2017) (quoting Clausen v. Icicle Seafoods, Inc ., 174 Wash.2d 70, 76, 272 P.3d 827 (2012) ).

A. THE LHWCA

¶13 The LHWCA provides a comprehensive scheme to pay compensation to an eligible land-based maritime worker for disability or death. See 33 U.S.C. §§ 902 - 03. The LHWCA excludes "a master or member of a crew of any vessel" from its maritime workers' compensation provisions. 33 U.S.C. § 902(3)(G). Masters and crewmembers excluded under the LHWCA are seamen entitled to sue the employer for damages under the Jones Act. Harbor Tug & Barge Co. v. Papai , 520 U.S. 548, 553, 117 S.Ct. 1535, 137 L.Ed.2d 800 (1997).

¶14 Under the LHWCA, payments are made to the qualified maritime worker regardless of employer fault. 33 U.S.C. § 904(b). In exchange for scheduled benefits for the worker, the employer is immune from a lawsuit for the injury. 33 U.S.C. § 905(a). Once a LHWCA claim is filed, it is presumed that such a claim falls within the act. 33 U.S.C. § 920(a). The LHWCA pays an injured maritime worker a schedule of benefits for time loss while they are temporarily disabled. 33 U.S.C. § 908(b). The LHWCA also allows an injured worker to recover for partial, total, and permanent and temporary disability, or death. 33 U.S.C. §§ 908 - 09.

¶15 When Congress excluded seamen from the LHWCA, they also amended the LHWCA to add a credit provision for the liable employer to offset any Jones Act damages award by any liability imposed on the employer under the LHWCA. 33 U.S.C. § 903(e).⁷

¶16 The LHWCA requires employers to pay benefits voluntarily, without an award. 33 U.S.C. §§ 904, 914(a). Where LHWCA benefits are contested, the Department may investigate and hold hearings and there may be a trial before an administrative law judge (ALJ) whose order is subject to review by a review board. 33 U.S.C. §§ 908, 914(h). The LHWCA is remedial in nature and is to be liberally construed in favor of the injured worker. Voris v. Eikel , 346 U.S. 328, 333, 74 S.Ct. 88, 98 L.Ed. 5 (1953).

B. THE JONES ACT

¶17 Seamen injured on the job generally do...