Miller v. Arctic Alaska Fisheries Corp.

• Decision Date: 21 November 1997
• Docket Number: No. 64627-9,64627-9
• Citation: 944 P.2d 1005,133 Wn.2d 250
• Court: Washington Supreme Court
• Parties: Edward MILLER, Respondent, v. ARCTIC ALASKA FISHERIES CORP. and Westward Wind, Inc., Petitioners.

Page 250

133 Wn.2d 250

944 P.2d 1005

Edward MILLER, Respondent, v. ARCTIC ALASKA FISHERIES CORP. and Westward Wind, Inc., Petitioners.

No. 64627-9.

Supreme Court of Washington En Banc.

Argued June 17, 1997.

Decided Sept. 25, 1997.

Reconsideration Denied Nov. 20, 1997.

As Amended on Denial of Reconsideration Nov. 21, 1997.

Le Gros, Buchanan & Paul, Dennis M. Moran, Seattle, for appellant.

John W. Merriam, Seattle, for respondents.

TALMADGE, Justice.

A seaman ¹ brought various claims against his employer for alleged injuries sustained while working on board a crab vessel. At issue on appeal are the interpretation and application of ER 904 to various medical opinion letters, the resolution of the seaman's unseaworthiness claim as a matter of law, resolution of the seaman's contract claims under 46 U.S.C. § 10601, and whether substantial evidence supports the jury's verdict resolving the seaman's maintenance and cure claims.

We hold ER 904, a counterpart to MAR 5.3, is designed to expedite the admission of certain specified documents into evidence, subject to the ability of the opposing party to object to the admission of such documents. In the absence of a timely objection under ER 904(c), the documents are admitted. Here, the trial court erred in excluding certain letters timely submitted under ER 904 to which untimely objections were made. We find this error harmless, however, since the letters contained information already before the jury. Likewise, the trial court erred in dismissing a portion of the seaman's claim of vessel unseaworthiness where there was evidence of repeated unsafe activities by the vessel's crew. This error also was harmless because Miller received a jury award on his alternative Jones Act (46 U.S.C.App. § 688) negligence claim. The trial court properly dismissed the seaman's contentions regarding the terms of his contract of employment under 46 U.S.C. § 10601. Substantial evidence supported the jury verdict on maintenance and cure. We reverse the Court of Appeals in part and affirm in part, reinstating the trial court's judgment.

ISSUES

1. Does ER 904 require objections regarding the admission of documentary evidence be made within the rule's time limit, or the documents are admitted into evidence?

2. Did the trial court err in dismissing an unseaworthiness claim where there was evidence of repeated misuse of ship's equipment by the crew which allegedly resulted in a seaman's injuries?

3. Did the trial court err in its treatment of a seaman's contract of employment under 46 U.S.C. § 10601?

4. Does substantial evidence support the jury's verdict indicating Miller attained maximum cure by May 15, 1993?

FACTS

The WESTWARD WIND, owned by Arctic Alaska Fisheries Corp. (Arctic), is a crab catcher and processor fishing Alaska waters. On January 2, 1993, Miller began working on the WESTWARD WIND as a cook/factory worker/deckhand pursuant to a 30-day contract. Miller left the vessel at St. Paul Island in the Bering Sea on January 22, 1993, complaining of knee, back, and buttock injuries. More specifically, Miller was allegedly injured in separate incidents during his short time on board the WESTWARD WIND when a door closed on his knee, hoist operators twice struck his back with a 500-pound crab cage, and boiling water splashed on his buttocks from an open crab cooker.

Miller filed the present action in the King County Superior Court, alleging the defendants were negligent under the Jones Act (46 U.S.C.App. § 688), the WESTWARD WIND was unseaworthy, he was not compensated as agreed, and he was entitled to additional maintenance and cure, punitive damages, and attorney fees. The defendants counterclaimed against Miller, alleging fraud because he certified his availability for work and received unemployment compensation while receiving maintenance and cure. Contentious discovery by both parties ensued.

On September 15, 1994, Miller notified Arctic under ER 904 that he intended to use a list of documents including two letters from medical doctors concerning his medical condition. One of these letters was from Miller's orthopedic surgeon in Texas, where Miller lives, which stated Miller had a previous knee injury aggravated by his shipboard experiences. Plaintiff's Ex. 14. The other letter was from another of Miller's treating physicians in Texas, stating Miller's burns healed without complications, but Miller continued to have a significant amount of thoracic pain from the back injury. Plaintiff's Ex. 15. Arctic first objected to these and other documents on October 4, 1994. On October 12 and October 14, Arctic objected to the documents as hearsay or as expressions of opinion. The trial court excluded the letters on October 18 as expressions of opinion, or hearsay, which denied Arctic the ability to cross-examine their preparer.

The trial commenced on October 18, 1994. At the close of Miller's case, on motion by Arctic, the trial court dismissed Miller's contract claims, claim of unseaworthiness and claims for punitive damages and attorney fees regarding alleged nonpayment of maintenance and cure. The jury ultimately returned a verdict for Miller on the negligence claim for $1,374 in damages, but also found Miller 50 percent at fault for his injuries; the net judgment was for $687. The jury also found for Miller on the counterclaim for fraud and found he had reached maximum cure by May 15, 1993. On appeal by Miller, the Court of Appeals reversed the trial court decisions on the admissibility of the doctors' letters under ER 904 and on unseaworthiness, and remanded the case to the superior court for a new trial. Miller v. Arctic Alaska Fisheries Corp., 83 Wash.App. 255, 259, 262, 921 P.2d 585 (1996) (see also Miller v. Arctic Alaska Fisheries Corp., No. 64627-9, 131 Wash.2d 1005, 932 P.2d 644 (Wash. Feb. 6, 1997), unpublished op. at 8-9). We granted review.

ANALYSIS

A. ER 904

ER 904 has no federal counterpart, has not been analyzed in law review articles, and has been discussed in only one reported appellate decision in dictum. ² In Patterson v. Horton, 84 Wash.App. 531, 929 P.2d 1125 (1997), the Court of Appeals held a plaintiff's medical bills and records were admissible as business records under RCW 5.45.020, with the aid of testimony from the records custodian, to prove costs of future treatment. The plaintiff attempted to have these documents admitted under ER 904, but served the documents on opposing counsel 23 days before trial in violation of the rule. The Court of Appeals noted: "[H]ad Patterson given timely notice pursuant to ER 904, she would have eliminated the need to call a witness to authenticate the records. (citing Miller v. Arctic Alaska Fisheries Corp., 83 Wash.App. 255, 261, 921 P.2d 585 (1996))." Id. at 542 n. 7, 929 P.2d 1125.

In this case, the Court of Appeals took an expansive view of ER 904, considering the rule's "overall structure" along with its commentary in order to achieve the apparent intent of expediting the admission of "the many hearsay-type documents targeted by the rule." See Miller, 83 Wash.App. at 261, 921 P.2d 585. Under this approach, Arctic's failure to make its hearsay objection to the letters submitted by Miller within ER 904 time limits resulted in a waiver of any objection and the admission of the letters.

Arctic contends ER 904 is confined to authentication of documents and does not provide for their presumptive admissibility. Arctic argues ER 904(a), which provides that enumerated documents "may be admitted in civil cases in accordance with (b) and (c) of this rule," preserves the trial court's broad discretion to admit or refuse evidence at any time, and its decision should not be disturbed save for an abuse of discretion. See Maehren v. City of Seattle 92 Wash.2d 480, 488, 599 P.2d 1255 (1979), cert. denied, 452 U.S. 938, 101 S.Ct. 3079, 69 L.Ed.2d 951 (1981).

The language of ER 904, unfortunately, uses authentication and admission indiscriminately and the rule is ambiguous. We construe the terms of an ambiguous court rule as we construe an ambiguous statute. See State v. Greenwood, 120 Wash.2d 585, 592, 845 P.2d 971 (1993) (when interpreting court rules, Supreme Court employs principles of statutory construction); State v. Wachter, 71 Wash.App. 80, 856 P.2d 732 (1993) (court rules are to be interpreted in the same manner as statutes), review denied, 123 Wash.2d 1014, 871 P.2d 599 (1994)

The principal guidance for interpretation of ER 904 is found in the comments of the Washington State Bar Association's Court Rules and Procedures Committee, the drafters of ER 904. 5B Karl Tegland, Washington Practice (3rd ed.1989, Supp.1997) at 139. The Court of Appeals relied on the drafters' comments as well. Miller, 83 Wash.App. at 260-61, 921 P.2d 585. The comments clearly indicate ER 904 was intended to parallel MAR 5.3, a mandatory arbitration rule providing for presumptive admissibility of enumerated documents. The comments reference ER 904's intended purpose to address both authentication and admission.

Like the arbitration rule upon which it is based, ER 904 is designed to expedite the admission of documentary evidence. Thus, for the documents enumerated in ER 904(a), a party seeking their admission into evidence must serve them upon opposing counsel at least 30 days prior to trial. ER 904(b). Opposing counsel may request proof of authentication and identification of the documents, or pose any appropriate evidentiary objection to the documents, within 14 days of receiving notice. ³ ER 904(c). ER 904(a) provides that enumerated documents "if relevant, may be admitted in civil cases in accordance with (b) and (c) of this rule." This language does not require the trial court to admit enumerated documents. Instead, the trial court may exercise its traditional discretion to address a party's evidentiary objection and admit or exclude the documentary evidence, provided that the objection to the admission of the evidence is made...