Gould v. Bird & Sons, Inc., s. 173--

• Decision Date: 01 June 1971
• Docket Number: Nos. 173--,174--I,s. 173--
• Citation: 5 Wn.App. 59,485 P.2d 458
• Court: Washington Court of Appeals
• Parties: William J. GOULD, Appellant, v. BIRO & SONS, INC., a Washington corporation, Respondent.

Page 59

5 Wn.App. 59

485 P.2d 458

William J. GOULD, Appellant, v. BIRO & SONS, INC., a Washington corporation, Respondent.

Nos. 173--I, 174--I.

Court of Appeals of Washington, Division 1, Panel One.

June 1, 1971.

Review Denied Aug. 26, 1971.

Schroeter, Jackson, Goldmark & Bender, Paul D. Jackson, Seattle, for appellant.

Short, Cressman & Cable, Kenneth P. Short, Seattle, for respondent.

WILLIAMS, Judge.

The plaintiff, William J. Gould, brought two actions against the defendant, Bird & Sons, Inc., for damages for personal injuries sustained when an aircraft which he was piloting in Laos in January, 1963, crashed and burned. The first was a common-law, master-servant action, which was dismissed on motion of the defendant for lack of prosecution. The second, filed more than 3 years after the first, was prepared under the elective remedy provision of § 905 of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. (1927). This second action was dismissed by the trial court by an order of the nature of a summary judgment because the 3-year statute of limitations (RCW 4.16.080) of the state of Washington had run. Plaintiff appeals from this judgment and from the court's denial of his motion to vacate the order of dismissal in the first case. The two cases were consolidated for the appeal.

The facts essential to an understanding of the issues on this appeal are these: In 1963, respondent was engaged in several construction projects in southeast Asia for various agencies of the United States government. Some of these were secret, and some were not. It built the large Wattay Airfield at Vientiane, Laos. Appellant applied at respondent's office in Bangkok for employment as an airplane pilot. Whether or not he was hired, and if so, on what terms and conditions, are factual issues which have not been resolved. He was, however, flying respondent's S.T.O.L. aircraft when it crashed on the Wattay Airfield.

The complaint in the first case alleged the negligence of respondent in failing adequately to familiarize the appellant with the aircraft and in not providing him with a safe place to work. The complaint was filed June 1, 1964. Respondent promptly entered a general denial.

In March, 1967, respondent moved to dismiss the first action for want of prosecution. Hearing on the motion was deferred by agreement of counsel to enable appellant to obtain private relief from Congress on the theory that he had been, in actuality, serving the United States in Laos when the accident occurred. The private relief effort failed because, as was stated in a letter to Senator Jackson from the State Department, there was a possibility that appellant was covered under the Longshoremen's Act by reason of one or more secret contracts which respondent had with the government at the time of the injury. Appellant then filed a claim for compensation under the act. Respondent, consistent with its position throughout the litigation, denied that appellant was covered because he had not been employed, or assuming he was, that he was not engaged in work under a contract to which the Longshoremen's Act applied.

In the meantime, respondent's counsel pressed for disposition of the motion to dismiss for lack of prosecution because on July 1, 1967, the granting of the motion would become discretionary with the court under the new rule (CR 41(b) (1)) which would become effective that date. If the motion had been heard prior to July 1, 1967, dismissal would have been mandatory. Day v. State, 68 Wash.2d 364, 413 P.2d 1 (1966). In June, 1967, counsel for both parties stipulated in writing that hearing on the motion would be postponed while appellant sought relief either from Congress or Lloyd's of London, or both. The agreement was that appellant would not note the case for trial until after the motion to dismiss had been disposed of. This, in effect, made dismissal mandatory, even under the new rule.

The second complaint, which was filed December 18, 1967, alleged that it was brought pursuant to 33 U.S.C. § 905 (1927), that respondent at the time of the injury had a contract with the government which brought it under the Longshoremen's Act, and detailed the derelictions of respondent which caused the accident. In its answer, respondent admitted entering into a contract on or about August 8 1962, with the Agency for International Development, Department of State, as being one of several, and also admitted ownership of the aircraft which appellant was flying when the crash occurred. The answer contained the affirmative defenses of the statute of limitations, contributory negligence, release, and misrepresentation.

Following the commencement of the second action, respondent noted for hearing its motion to dismiss the first case for lack of prosecution. Appellant's counsel endorsed: 'Approved and Notice of Presentation Waived' on the proposed order of dismissal, which contained the following statement: 'This order shall not affect in any way the pending King County Court Cause No. 691848, entitled William J. Gould v. Bird & Sons, Inc., a Washington corporation.' It was entered on presentation. Respondent then moved pursuant to CR 12(c) for judgment of dismissal of the second action because of the operation of the statute of limitations. Appellant countered by moving to vacate the order of dismissal of the first action. The court considered the motions, together with all of the materials filed in each action as permitted by CR 12(c), and decided as above stated.

A large part of the written records consists of contradictory affidavits of respective counsel as to verbal understandings and stipulations, or lack thereof, concerning the postponement and final entry of the order of dismissal for want of prosecution in the first action. Resolution of conflicts of this kind is unpleasant, and fortunately unnecessary, for CR 2A requires such matters to be in writing and signed. There is nothing in the record, aside from the debate of counsel, which would indicate any irregularity or unfairness in the entry of the order. It must therefore stand.

The real issue is whether the trial court was correct in deciding that the state statute of limitations was a bar to the second case. Appellant contends that it is not a bar because the action was created by the Longshoremen's Act and the action did not come into being until notice of claim was filed and until respondent 'failed to secure payment of compensation.' The pertinent portion of the act is § 905, which provides as follows:

The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, Except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.

(Italics ours.)

Section 913 requires that the employee file his claim within one year after the injury. This limitation is tolled during the period in which the employer fails, neglects, or refuses to file a report of the injury as required by the act (§ 930). We do not find in the act a provision that the time limitation begins to run from the date of the filing of a claim, as contended by appellant, but this is unimportant because respondent has consistently taken the position that appellant's injury is not covered by the act, no report has ever been filed as required by § 930, and appellant's claim continues to live, if, in fact, it ever did exist. If the 'action at law or in admiralty' is a part of the claim for compensation under the statute, as appellant contends, then the other provisions of the statute, including the tolling of the time limitation, apply; and the trial court was in error in dismissing the second action because of the operation of the state statute of limitations. On the other hand, if the 'action at law or in admiralty' is not created by the Longshoremen's Act, but is a common-law action for personal injuries with the defenses removed, then the usual rules of law which apply to such actions will determine the result. Hammels v. Britten, 53 Ariz. 112, 85 P.2d 992 (1939); Thorneal v. Cape Pond Ice Co., 321 Mass. 528, 74 N.E.2d 5 (1947).

The elective remedy provision, which is the underscored portion of § 905 set forth above, appears in many state workmen's compensation statutes as well as the federal one. Its purpose is to encourage employers to accept the idea of compensation for injured workmen not based on fault and...