Phan v. Tows
| Decision Date | 03 October 2022 |
| Docket Number | 83252-2-I |
| Parties | PETER (PHUC) PHAN and QUYNH-GIAO THY NGUYEN, Husband and Wife, Appellants, v. PULLEN TOWS AND MARINE SALVAGE, LLC; JEFFREY PULLEN AND JANE DOE PULLEN AND THE MARITAL COMMUNITY COMPOSED THEREOF; BOAT/US INC.; AND DOES 1 THROUGH 5, Respondents. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Once again, we are asked to reflect on the fate of Peter (Phuc) Phan's 57-foot catamaran. In an unpublished opinion, we previously upheld a finding that the City of Kirkland properly took permanent custody of the derelict vessel after it was dislodged from its grounding in Juanita Bay, and re-grounded near a Kirkland city pier, after it took on water while being towed.[1]Phan next sued BoatUS, a membership association for boaters that ordered the tow, the towing company, and its owner for negligence, breach of contract, and negligent infliction of emotional distress.[2] Phan appeals the summary judgment dismissal of all his claims. Because there is no genuine issue of material fact, we affirm.
Many background facts can be found in our unpublished opinion from Phan's first appeal that we need not repeat here. See Phan, No. 79392-6-I, slip op. at 2. Instead, we focus on facts relevant to the issues in this appeal.[3] In October 2017 Phan did not have a slip to store his 57-foot catamaran and kept his vessel in the waters of Lake Washington with an anchor inadequate to keep the boat in place. As a result Phan grounded the boat several times in Juanita Bay. The King County Sheriff's Office Marine Rescue Dive Unit received numerous reports of these groundings throughout September 2017.
On October 2, the Sheriff's Office again received a report of Phan's boat running aground in Juanita Bay. Phan assured the Sheriff's Office that he was attempting to move the boat using its own engines. Four days later, on October 6, the vessel was still aground. Phan contacted BoatUS, a boaters' group that provides vessel towing assistance to members who purchase a towing service agreement. This service operates similarly to the American Automobile Association's (AAA) roadside assistance services, contracting with marine towing companies to provide services to members. BoatUS dispatched Pullen Tows and Marine Salvage, owned and operated by Jeffrey Pullen (Pullen), to assist Phan with towing his grounded vessel. This was at least the third time Pullen was dispatched to unground the vessel in Juanita Bay in the summer and fall of 2017.
Pullen possesses a 100-ton Master's License with a towing endorsement issued by the United States Coast Guard. He has operated Pullen Tows for more than 25 years and provides towing and ungrounding services to recreational boaters under a license and service agreement with BoatUS.
On October 6, Pullen and his assistant, Mike Cook, arrived to Phan's vessel in Juanita Bay, finding the boat approximately 20 to 40 feet from the shore, in "very shallow water." Although it had been windy the previous day, the wind subsided by the time Pullen and Cook arrived. Pullen had ungrounded boats in substantially worse weather.
Pullen described the lakebed in Juanita Bay as silty from runoff from Juanita Creek. According to Pullen, there are no rocks or submerged logs in the area. The water was too shallow for Pullen to bring his own vessel near Phan's, so Cook reached the vessel on a skiff to attach a tow line. Upon approach, Cook observed the bilge pumps "obviously working" and claimed Phan did not inform him of any concerns. Phan described the conversation differently:
When we first met, I tried to approach and bring up my concern that although my boat is heading toward the deep water, but since my boat is drifted so close to the side of the beach where it is so near private residents and private docks, on front of my boat is actually shallower than its side or even its stern for some reason. I jumped down to the water to help it in the past few days, I knew the dept [sic] of the water well. Unfortunately, the assistant cut me off that, "you do not have to tell us how to do our job." I was little embarrassed and explaining that, "well, I only share what I've experienced about the area."
Cook tied a tow line to the vessel and verbally confirmed the tow plan with Phan. Cook asked Phan to engage his outboard engine once the boat became dislodged. Cook radioed to Pullen and told him Cook had confirmed the plan with Phan. When Pullen received word, he revved his engine to 1000 RPM, just long enough to allow the catamaran to become dislodged from the lakebed and drift on its own momentum. Phan described feeling the boat shake "horribly" when it started moving "fast." He "felt that the bottom or its propellers or sow [sic] were definitely dragged." Phan called and screamed at Cook asking if they could slow down "a bit." Cook screamed back that Phan should just help with the outboard engine. Phan described Cook as disregarding his fear or concern. Phan went to help with the outboard and when the boat was already out in the deep water, he went back down to check on the hull. Phan found at least one compartment had a "horrible water leak" with "a lot of water coming in." Phan went back up and screamed at Cook that his boat was sinking and that it was taking in a lot of water in one compartment.
About one minute after the vessel was dislodged, Cook observed that Phan's vessel began to sit lower in the water, indicating that the boat was taking on water faster than the bilge pumps could remove. Cook informed Pullen. Pullen decided it was not safe to tow the vessel in that condition and decided to re-ground it not far from where he had found it, about 70 feet from the Juanita Beach Park public pier. Because Pullen had been dispatched for an ungrounding operation, he did not use his salvage boat. He and Cook told Phan that they would have to return to their dock to retrieve Pullen's salvage boat with dewatering equipment. However, as Pullen headed back to his dock, he confirmed by phone with Phan that salvage and dewatering was not covered under Phan's BoatUS plan. When Pullen asked if Phan had insurance coverage for salvage work, Phan told Pullen he would "get back to [him]" but never contacted him again. Pullen did not provide any additional service.
Phan then contacted the King County Sheriff Office, which was concerned that the vessel would capsize. Deputies assisted in dewatering the vessel to prevent capsizing, and Phan eventually hired a commercial service, Aqua Dive Service (Aqua Dive), to get the vessel afloat again. Aqua Dive plugged the leak in the hull and dewatered the vessel so it could float. However, weather continued to deteriorate with three-foot waves and 10-20 mile per hour winds that continued to push the vessel against the pier. Aqua Dive told Phan it could no longer take the vessel because of the worsening weather and safety concerns. The next day, the wind and waves pushed Phan's boat into the pier causing further damage to the vessel and the pier. The vessel sank, resting on the lakebed in approximately two and a half feet of water. A surveyor found the vessel had sustained significant damage and was a "total loss due to the structural stern damage and from the flooding."
Unable to comply with the sheriff's order to immediately remove the vessel, the City of Kirkland impounded the vessel and eventually took custody of the vessel under the Derelict Vessels Act. Phan initially appealed to the Pollution Control Hearings Board and eventually appealed the Board's decision to us. We issued our decision in an unpublished opinion on March 2, 2020, which reversed the Board's finding that the city properly took temporary possession of the vessel but affirmed the finding that the city properly took permanent custody of the vessel on November 17, 2017. Phan, No. 79392-6-I, slip op. at 20.
In October 2020, Phan and his wife[4] filed suit against BoatUS, Pullen individually and Pullen Tows and Marine Salvage, LLC,[5] Phan claimed negligence, breach of contract, negligent infliction of emotional distress, outrage, and special damages stemming from the tow of the vessel on October 6, 2017. The defendants filed a joint motion for summary judgment on all claims. The trial court granted the defendants' motion. Phan appeals, challenging the dismissal of all claims except the claim of outrage.
We review summary judgments de novo. Strauss v. Premera Blue Cross, 194 Wn.2d 296, 300, 449 P.3d 640 (2019). Summary judgment is appropriate when "'there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.'" Id. (alteration in original) (internal quotation marks omitted) (quoting Rangers Ins. Co. v. Pierce County, 164 Wn.2d 545, 522, 192 P.3d 886 (2008)); CR 56(c).
We must construe all facts and inferences in favor of the nonmoving party. Scrivener v. Clark College, 181 Wn.2d 439, 444, 334 P.3d 541 (2014). "A genuine issue of material fact exists when reasonable minds could differ on the facts controlling the outcome of the litigation." Dowler v. Clover Park Sch. Dist. No. 400, 172 Wn.2d 471, 484, 258 P.3d 676 (2011).
The parties agree that federal maritime law governs this action. The elements of a maritime negligence cause of action are essentially the same as those for a "land-based" negligence action under common law: (1) the existence of a duty that requires a standard of care or conduct to protect against foreseeable risks, (2) a breach of that duty by conduct that falls below a reasonable norm, and (3) a reasonably close causal connection between the breach of duty and the resulting loss. Alprin v. City of Tacoma 139 Wn.App. 166, 171, 159 P.3d 448 (2...
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