Jones v. Dutra Construction Co.

• Decision Date: 16 September 1997
• Docket Number: No. A074144,A074144
• Citation: 57 Cal.App.4th 871,67 Cal.Rptr.2d 411
• Court: California Court of Appeals Court of Appeals
• Parties: , 1998 A.M.C. 73, 97 Cal. Daily Op. Serv. 7422, 97 Daily Journal D.A.R. 11,936 Robert JONES, Plaintiff and Appellant, v. DUTRA CONSTRUCTION COMPANY, Defendant and Respondent.

Page 411

67 Cal.Rptr.2d 411

57 Cal.App.4th 871, 1998 A.M.C. 73,

97 Cal. Daily Op. Serv. 7422,

97 Daily Journal D.A.R. 11,936

Robert JONES, Plaintiff and Appellant, v. DUTRA CONSTRUCTION COMPANY, Defendant and Respondent.

No. A074144.

Court of Appeal, First District, Division 2, California.

Sept. 16, 1997.

McGuinn, Hillsman & Palefsky, John R. Hillsman, San Francisco, for Plaintiff and Appellant.

Kelly, Cox, Wootton, Griffin, Gill & Sherburne, Richard C. Wootton, San Francisco, for Defendant and Respondent.

KLINE, Presiding Justice.

Robert Jones appeals from a summary judgment granted in favor of respondent, Dutra Construction Company. The trial court found appellant's action for negligence barred by section 905(b) of Title 33 of the United States Code, part of the federal Longshore and Harbor Workers' Compensation Act (33 U.S.C. § 901 et seq.). Appellant urges the trial court erred in finding that provision applied to him.

STATEMENT OF THE CASE AND FACTS

Respondent is a marine construction firm engaged in business activities including dredging, harbor work, pier and wharf construction, and levee construction. It has an in-house equipment division that maintains, repairs and modifies its own equipment. Respondent owns and operates a fleet of construction vessels, including barges, dredges, tugs and scows. Respondent does not build or repair vessels for outside customers, perform shipbreaking, own a dry dock, or operate a ship yard.

Appellant, whose working life began before 1958, has held a number of jobs, including at a plywood peeling plant, at a stud mill, as a mechanic, as proprietor of a tire store, and as a construction worker. On October 22, 1994, appellant was one of a number of welders dispatched from the Local 3 union hall to work for respondent on the modification of two scows to accommodate toxic waste from a dredging operation. Appellant had never worked for respondent before. The project involved fabricating six T-shaped bulkheads for each scow and was to last at most two weeks. The T-sections were fabricated on shore and then welded onto the scows. The T-sections were temporary modifications to the scows, removed after the completion of the dredging operation. On October 30, appellant was welding on board one of the scows when he stepped backwards, fell into an open access hole and was injured.

On January 27, 1995, appellant filed a complaint against respondent entitled "Harbor Worker's Complaint for Personal Injury Due to Vessel Owner Negligence." Appellant alleged that he was employed by respondent as a "harbor worker and rigger, in a capacity comprising 'maritime employment' within the meaning of Sections 2, 3, and 5 of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. sections 902, 903, and 905" and was injured while aboard respondent's scow upon the navigable waters of the United States. He alleged a single cause of action for vessel owner negligence "under the General Maritime Law, as modified by the provisions of Section 5(b) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Section 905[.]"

On April 4, 1995, respondent filed its answer to the complaint, generally denying each of the allegations of the complaint and raising six affirmative defenses: Failure to state a cause of action, contributory negligence, comparative negligence, failure to mitigate, Proposition 51, and state workers' compensation as exclusive remedy.

On February 26, 1996, respondent moved for summary judgment, urging the action was barred by section 905, subdivision (b), part of the Longshore and Harbor Workers' Compensation Act. Appellant opposed the motion on the merits.

After a hearing on April 5, on April 19 the court filed its decision granting the motion for summary judgment. The court found "as a matter of law, [appellant's] claim is barred under 33 U.S.C. § 905(b) and Heise v. The Fishing Company of Alaska [ (9th Cir.1996) 79 F.3d 903] and [respondent's] Separate Statement of Undisputed Facts, Numbers 1 through 6."

Appellant filed a timely notice of appeal on April 26, 1996.

DISCUSSION

The Longshore and Harbor Workers' Compensation Act (LHWCA) provides for the payment of compensation for the disability or death of an "employee" resulting from an injury occurring upon the navigable waters of the United States, including adjoining areas "customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel." (33 U.S.C. § 903, subd. (a).) ¹ An "employee" is defined in the statute as "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, any harbor-worker including a ship repairman, shipbuilder, and ship-breaker" and excluding specified individuals (such as those employed exclusively to perform office clerical, secretarial and security work; employed by a club, camp, recreational operation, restaurant, museum, or retail outlet; and others not engaged in maritime occupations or not exposed to maritime hazards even though employed by maritime employers or working on or adjacent to navigable waters). (§ 902, subd. (3); see, 1984 U.S.Code Cong. and Adm. News, pp. 2736-2737.)

Section 905, subdivision (a), part of the LHWCA, provides that an employer's liability under the Act is its exclusive liability unless it fails to secure payment of compensation as required by the Act. Section 905, subdivision (b) provides: "In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed to provide shipbuilding, repairing, or breaking services and such person's employer was the owner, owner pro hac vice, agent, operator, or charterer of the vessel, no such action shall be permitted, in whole or in part or directly or indirectly, against the injured person's employer (in any capacity, including as the vessel's owner, owner pro hac vice, agent, operator, or charterer) or against the employees of the employer. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter." (Emphasis added.)

As a preliminary matter, appellant claims summary judgment was improperly granted because respondent never raised the bar of section 905, subdivision (b), in its answer. Respondent counters that since appellant's only cause of action was for vessel owner negligence, its first affirmative defense of failure to state a cause of action was adequate to raise the section 905, subdivision (b) issue. It further urges appellant was given notice of its intention to argue this issue by the summary judgment motion and waived any objection to the insufficiency of the answer by failing to raise such a challenge in the trial court.

As noted above, appellant responded to the summary judgment motion on the merits, never claiming respondent's answer was defective or insufficient to support the summary judgment motion. "In this circumstance it would be unfair to ground a ruling on the inadequacy of the pleadings if the pleadings, read in the light of the facts adduced in the summary judgment proceeding, give notice to the plaintiffs of a potentially meritorious defense. If plaintiffs had openly challenged the adequacy of defendants' pleading in the trial court, and defendants tendered a potentially meritorious unpled defense, it is likely that they would have been allowed to amend their answer. (See 5 Witkin, Cal. Procedure [ (3d ed. 1985) ] Pleading, §§ 1121-1164.) For that reason we deem plaintiffs' failure to challenge the sufficiency of the pleading of affirmative defenses as a partial waiver of the right to rely upon these defects on appeal. [p] We do so for reasons analogous to the appellate doctrine of theory of the trial. 'Where the parties try the case on the assumption that a cause of action is stated, that certain issues are raised by the pleadings, that a particular issue is controlling, or that other steps affecting the course of the trial are correct, neither party can change this theory for purposes of review on appeal.' (9 Witkin, Cal. Procedure, supra, Appeal, §§ 316-323.)" (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 385, 282 Cal.Rptr. 508.) In the present case, the parties litigated the summary judgment motion with no suggestion respondent's reliance upon the bar of section 905, subdivision (b) was improper. Appellant obviously had notice of the defense upon which respondent was relying and, by so litigating the merits of the summary judgment motion, waived any right to claim on appeal that the answer was defective.

Appellant argues that respondent may not rely upon the bar of section 905, subdivision (b), because this provision, enacted as part of the 1984 amendments to the LHWCA, was intended to protect employers engaged in the business of shipbuilding and not other vessel owning employers. Appellant's attorney asserts, as he did in the trial court, that his law firm helped write the 1984 amendments to the LHWCA and knows their history and purpose first hand. He offers two excerpts from a United States Senate Report concerning the amendments, each of which offers an illustration of how the exemption created...