Holm v. Meyers
| Decision Date | 01 July 2022 |
| Docket Number | 3:21-cv-05501-BJR |
| Citation | 609 F.Supp.3d 1173 |
| Parties | Keith H. HOLM, Plaintiff, v. Michael MEYERS, et al., Defendants. |
| Court | U.S. District Court — Western District of Washington |
Steven V. Gibbons, Gibbons & Associates, Seattle, WA, for Plaintiff.
Mark A. Krisher, Thomas George Waller, Bauer Moynihan & Johnson, Seattle, WA, for Defendant Michael Meyers.
ORDER GRANTING IN PERSONAM DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Keith Holm ("Plaintiff" or "Holm"), filed this lawsuit against in personam defendant Michael Myers ("Defendant" or Myers) and in rem defendant M/Y Head Hunter (the "Head Hunter"), asserting claims under the Jones Act, general maritime law, and for common law negligence arising from injuries Plaintiff alleges he sustained while aboard Myers’ boat, the Head Hunter. Presently before the Court is Defendant's motion for summary judgment on all of Plaintiff's claims ("Motion" or "Mot.," Dkt. 13). Having reviewed the Motion, the record of the case, and the relevant legal authorities, the Court GRANTS the Motion and dismisses Plaintiff's claims. The reasoning for the Court's decision follows.
Plaintiff's lawsuit arises from an incident that took place aboard the Head Hunter near a marina in Kingston, Washington on August 1, 2019. At the time of the incident, the 26-foot boat was owned by Myers, who was then 76 years old and retired. Myers Dep. Tr. at 8:10-11, 24:23-25:2. Holm, who was then 54 years old, had been self-employed for roughly 20 years under his sole proprietorship, Holm Heritage Painting and Boatworks ("Holm Heritage Painting"), which provided boat painting and other vessel-related services. Holm Dep. Tr. at 20:21-23:3, 47:3-25. Holm testified that he charges customers an hourly "shop rate" for his services, which was $55 on August 1, 2019. Id. at 40:21-22; see Dkt. 14, Ex. 4.
The parties agree that, sometime shortly before the date of the incident, Myers telephoned Holm – who had previously done work on another boat owned by Myers – to ask if Holm could help sail the Head Hunter on a three-to-four hour voyage from the Kingston marina to Holm's warehouse in Port Townsend, Washington, for engine repairs. Holm Dep. Tr. at 54:5-55:5, 58:13-59:4, 59:15-60:20; Myers Dep. Tr. at 14:2-14. Both testified that Myers asked for Holm's help because Holm lived in Port Townsend and was familiar with its marina (Holm Dep Tr. at 61:17-25; Myers Dep. Tr. at 14:2-14), although Holm also testified that he believed Myers’ request was based in part on his superior experience operating boats like the Head Hunter. Holm Dep. Tr. at 59:15-25.
The parties disagree about other aspects of Myers’ request. According to Holm, Myers had telephoned him asking if he could "be his deckhand and assistant." Holm Dep. Tr. at 60:1-8.1 Holm testified that although he initially declined Myers’ request because of personal obligations, he agreed after Myers promised to pay him his shop rate. Id. at 60:1-8, 13-20. Myers, on the other hand, denies that he ever asked Holm to be his deckhand. Myers Decl. ¶ 12. Myers further denies that he promised to pay Holm his shop rate prior to the voyage, asserting instead that he "never discussed paying [ ] Holm anything for the trip." Id. ¶ 13.
Holm and Myers boarded the Head Hunter at the Kingston marina at approximately 10:00 a.m. on August 1, 2019. Holm Dep. Tr. at 66:2-6. After sailing roughly 100 to 200 meters to the edge of the marina's waters and the "no wake" zone, the boat's engine stalled and could not be restarted. Id. at 65:6-25, 69:2-5; Myers Dep. Tr. at 47:11-18. Holm deployed an anchor, and after he and Myers spent some time making calls for help, a "Good Samaritan" boat arrived and offered to tow the Head Hunter back to the Kingston marina. Holm Dep. Tr. at 65:1-5; Myers Dep. Tr. at 54:10-13.
According to Holm, as he was positioned between both boats working to tie them together with a "side-tow," two motor yachts simultaneously passed by at high speed, creating a wake that caused the Head Hunter and the Good Samaritan boat to "buck" up and down and slam into each other. Holm Dep. Tr. at 71:9-21, 74:9-25, 75:6-11, 93:15-22. Holm testified that he held onto both boats’ railings in order to protect his legs from being caught in the "bite" of the boats’ bulwarks, but his arms became injured when they were pulled apart and jerked inward by the boats’ drift. Id. at 74:9-76:10 ("It felt like I got them yanked out of their sockets"), 92:4-23 ("I managed to get my feet out of the way and paid for it with my arms."); Holm Decl. ¶ 7. Holm and Myers eventually returned to the Kingston marina and deboarded the Head Hunter approximately four hours after the voyage began. Holm Dep Tr. at 66:7-19.
The parties dispute the amount of money Myers paid Holm upon returning to the marina. Myers declares that he gave Holm $60, "in an effort to say ‘thank you,’ " and told Holm that he "should use the $60 for gas." Myers Decl. ¶ 14. Holm, on the other hand, testified that Myers paid him $200 in cash. Holm Dep. Tr. at 66:20-67:22; Holm Decl. ¶ 5.
Plaintiff filed this lawsuit on July 13, 2021, asserting claims for (1) common law negligence and negligence under the Jones Act, premised on allegations that Myers’ conduct aboard the Head Hunter breached a duty of care owed to Holm; (2) unseaworthiness, based on allegations that the Head Hunter lacked, among other things, a reliable means of propulsion and a competent master and crew "for the safe and seamanlike operation of the vessel"; and (3) failure to provide maintenance and cure to Holm. Complaint ("Compl.," Dkt. 1).
On August 26, 2021, Holm, though his counsel, sent Myers a demand for maintenance at the rate of $65 per day starting on the date of the incident, and for "all medical expenses related to the incident until [ ] Holm reaches maximum medical cure." Gibbons Decl., Ex. A. Myers and his insurer declined to provide the requested maintenance and cure. Krisher Decl., Ex. 7; Myers Dep. Tr. at 97:8-23; Holm Decl. ¶ 8.
Defendant filed the Motion on March 29, 2022, seeking summary judgment on all of Plaintiff's claims. Plaintiff filed an opposition on April 19, 2022 ("Opposition" or "Opp.," Dkt. 19), and Defendant replied on April 27, 2022 ("Reply" or "Rep.," Dkt. 23).
"The standard for summary judgment is familiar: ‘Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, there is no genuine dispute as to any material fact.’ " Zetwick v. County of Yolo , 850 F.3d 436, 440 (9th Cir. 2017) (quoting United States v. JP Morgan Chase Bank Account No. Ending 8215 , 835 F.3d 1159, 1162 (9th Cir. 2016) ). A court's function on summary judgment is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If there is not, summary judgment is warranted.
In his Reply, Defendant moves, pursuant to Local Civil Rule 7(g), to strike (1) the declaration of Captain Charles A. Jacobsen (Dkt. 20) in its entirety; and (2) Holm's declaration (Dkt. 21) "where it conflicts with his interrogatory responses and deposition testimony and otherwise contains inadmissible hearsay statements." Rep. at 1-7.
Defendant argues that Captain Jacobson's declaration impermissibly "presents the Court with legal opinions in the guise of expert testimony" concerning Myers’ compliance with applicable federal regulations and whether Holm was employed by Myers as a seaman. See Rep. at 1-2. While the declaration and accompanying report certainly contain legal opinions (see, e.g. , Jacobson Decl., Report ¶ 1 (), ¶ 3 ()), those materials are not uniformly objectionable on that basis. Therefore, this Court disregards only those portions of Captain Jacobson's declaration that contain improper legal opinions.2
As to Holm's declaration, Defendant argues that it was submitted as a "sham declaration" in order "to create an issue of material fact as to whether or not he was employed by [ ] Myers," and also reports inadmissible hearsay as to what his physicians told him about his alleged shoulder injury. See Rep. at 3-7. Defendant is correct that Holm, in his declaration, contradicts his prior deposition testimony and interrogatory answers. However, the Court declines to strike the declaration, mindful that on summary judgment, the Court must construe all disputed facts in favor of Plaintiff. Further, while Holm's statements about his physicians’ diagnosis and recommendations constitute hearsay, they are nonetheless "admissible for summary judgment purposes because they could be presented in an admissible form at trial." Fonseca v. Sysco Food Servs. of Arizona, Inc. , 374 F.3d 840, 846 (9th Cir. 2004) (quotation marks and citation omitted); see Denton v. Pastor , No. 17-cv-5075, 2021 WL 6622137, at *3 (W.D. Wash. Dec. 16, 2021) (), report and recommendation adopted , 2022 WL 203489 (W.D. Wash Jan. 24, 2022).
Plaintiff asserts a negligence claim under the Jones Act, which provides that "[a] seaman injured in the course of employment ... may elect to bring a civil action at law, with the right of trial by jury, against the employer." 46 U.S.C. § 30104. Consistent with the...
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