Primozich v. Oczkewicz, CASE NO. C16-82 BJR

• Decision Date: 09 January 2017
• Docket Number: CASE NO. C16-82 BJR
• Court: U.S. District Court — Western District of Washington
• Parties: JON RYAN PRIMOZICH, Plaintiff, v. EDWARD M OCZKEWICZ, et al., Defendants.

JON RYAN PRIMOZICH, Plaintiff, v. EDWARD M OCZKEWICZ, et al., Defendants.

CASE NO. C16-82 BJR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

January 9, 2017

ORDER PARTIALLY GRANTING MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This matter is before the Court on Defendants' Joint Motion for Summary Judgment. (Dkt. No. 12.) The motion seeks dismissal of all claims filed by Plaintiff against these defendants - claims for negligence under the Jones Act and unseaworthiness, maintenance, cure, and unearned wages under general maritime law, punitive damages, and others. (See Dkt. No. 1, Complaint at pp. 3-6.) Plaintiff opposes the motion and requests leave of the Court to amend his complaint. (Dkt. No. 16, Response.)

Upon review of all briefing, the applicable case law and relevant parts of the record, the Court PARTIALLY GRANTS AND PARTIALLY DENIES Defendants' request for dismissal of all claims and GRANTS Plaintiff's request to amend his complaint to add VMS Fisheries, LLC, as a defendant. The Court's reasoning follows:

II. LEGAL STANDARD

Summary judgment is appropriate if the evidence, when viewed in the light most favorable to the non-moving party, demonstrates "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. Cnty of L.A., 477 F.3d 652, 658 (9th Cir. 2007). The court is "required to view the facts and draw reasonable inferences in the light most favorable to the [non-moving] party." Scott v. Harris, 550 U.S. 372, 378 (2007).

The moving party bears the initial burden of showing there is no genuine issue of material fact and that he or she is entitled to prevail as a matter of law. Celotex, 477 U.S. at 323. If the moving party meets its burden, the burden shifts to the non-moving party to "make a showing sufficient to establish a genuine dispute of material fact regarding the existence of the essential elements of his case that he must prove at trial." Galen, 477 F.3d at 658. BACKGROUND

Defendant Edward Oczkewicz ("Oczkewicz") is the owner of Maritime Fabrications, Inc. and La Conner Maritime Service (collectively known as "La Conner Maritime"), companies which manufacture and repair recreational and commercial fishing vessels. (Dkt. No. 13, Decl. of Krisher, Ex. 1, Depo. of Oczkewicz, 5:13-22, 9:5-9.) Oczkewicz also owns several commercial fishing vessels, including a vessel called the JIMMY O, which operates out of Alaska (primarily in the Bristol Bay fishing catchment) during the summer season. (Id., 7:9-11.)

Defendant Vincent Stone ("Stone") is the sole owner of VMS Fisheries, LLC ("VMS"), a company through which he has owned and leased commercial fishing vessels and fishing permits. Dkt. No. 13, Decl. of Krisher, Ex. 2, Depo. of Stone, 6:1-4, 7:1-4 8: 15-21.) Plaintiff Jon Primozich ("Primozich") is a long-time commercial fisherman who has also worked in other maritime-related capacities, including work for La Conner Maritime performing tasks such as outfitting vessels, concrete labor and painting. (Dkt. No. 17, Decl. of Primozich, ¶¶ 3-4.)

In mid-2015, both Stone and Primozich were interested in chartering the JIMMY O for the Summer 2015 Bristol Bay season; Oczkewicz eventually decided to lease the boat to VMS on a "bareboat" or "demise" basis, a contractual arrangement which transfers all incidents of ownership to the chartering party, except for the title; thus, the employer of all the crewmembers of the JIMMY O during the Summer 2015 season was VMS. (Depo. of Oczkewicz, 13:17-25; Dkt. No. 14, Decl. of Stone, Exs. 1-2.)

Stone and Primozich reached an oral agreement to employ Plaintiff as a crewmember of the JIMMY O. (Decl. of Primozich at ¶ 5; Depo. of Stone 19:3-6.) Prior to the vessel being launched in La Conner in April 2015 (for a short trip to Seattle where it would be barged to Bristol Bay), Plaintiff provided services towards preparing the boat, such as buying groceries, loading the JIMMY O with nets, fishing gear (including Plaintiff's own foul weather fishing gear), and assisting with the launch. (Decl. of Primozich at ¶¶ 6-7.) After providing those services, Primozich relocated to Alaska to work for La Conner Maritime in Naknek; included among his duties were painting, construction, and some work aboard the JIMMY O (the installation of a light bar on the vessel's exterior and the installation of refrigeration tubes for the cooling system). (Dkt. No. 13, Decl. of Krisher, Ex. 3; Depo. of Primozich, 71:9-21 and 75:2-24.)

Plaintiff's work with La Conner Maritime concluded in late May 2015; he moved off the premises of that company and into a shipping container and began work as an independent contractor assembling and repairing nets for Adams Enterprises in Naknek. Plaintiff kept his own hours at that job and alleges that, when Stone relocated to Naknek in June 2015, he performed a number of tasks for Stone, among which were loading several truckloads of gear (including mooring lines, net lines and a pike pole) and more of his own gear (survival suits, galley items and miscellaneous fishing gear) aboard the JIMMY O. (Decl. of Primozich at ¶ 12.)

The JIMMY O was on blocks, out of the water, during this time as it was being prepared for the upcoming season. Stone denies that Primozich had anything to do with the onboard work of readying the boat to go fishing (Depo. of Stone, 36:20-25) and Plaintiff's own deposition testimony is that he would "stop by and look and see what was going on" on the vessel prior to its launch. (Depo. of Primozich, 138:11-20.)

The JIMMY O was launched on June 24, 2015. One or two days prior to the launch, Stone requested Primozich to help him move a number of bags of nets from Stone's locker to another net storage area. Primozich acknowledged that it was a "two-man" job and that a third person was not necessary (Id. at 141:21-142:4), but also alleges that the bags had no handles and were "slippery" (Decl. of Primozich at ¶ 17), an allegation which Defendant does not controvert. During the loading of the bags onto Stone's truck, Stone lost his grip on one of the bags and his end dropped to the ground. Primozich testified that "it just kind of fell real quick on my arm. And before I had a chance to let go of it, it just pulled." (Id. at 139:24-25; see also id. at 143:11-15.) While he did tell Stone "I think I hurt my arm," he "didn't think it was a big deal" at the time. (Id. at 146:11-13.) The two men loaded the remaining bags and Plaintiff neither took any medicationfor the injury nor mentioned it to anyone else until he sought out a medical professional some time later. (Id. at 147:1-148:9.)

One or two days after that incident, Primozich stopped repairing nets and reported to the JIMMY O. He recalls spending one night on board the vessel before it launched. (Id. at 115:5-14.) Following a short shakedown cruise, the JIMMY O went on a brief fishing trip. Primozich's employment as a crewmember on the vessel ended the day after that initial fishing trip. (Id. at 109:23-110:21.) He found other employment in Alaska (Decl. of Primozich at ¶ 12), eventually returned to Seattle, and in January, 2016 filed this lawsuit against the Defendants, asserting claims which include negligence under the Jones Act; unseaworthiness, maintenance, cure, and unearned wages under general maritime law; failure to have a written "Fishing Agreement" with him; and retaliatory discharge. Plaintiff seeks both actual and punitive damages. (See Dkt. No. 1, Complaint at pp. 3-6.)

III. DISCUSSION

A. Certain claims dismissed preliminarily

In the course of his responsive briefing, Plaintiff dismisses or abandons several of his claims against Defendants as legally unsupported. They are:

1. All claims for personal liability against Defendant Oczkewicz ("Defendant" hereinafter refers only to Defendant Stone);

2. His punitive damages claim for unseaworthiness; and

3. All claims under 46 U.S.C. § 10601 (absence of a written agreement).

Prior to any further analysis of Defendant's motion, the Court GRANTS that request and DISMISSES those claims.

B. "Seaman" v. "expectant seaman"

The Jones Act (46 U.S.C. § 30104) is applicable only to a "seaman injured in the course of employment." The Act does not cover "probable or expectant seamen," only "seamen in being." Desper v. Starved Rock Ferry Co., 342 U.S. 187, 190-91 (1952). This is equally true of general maritime law.

If Plaintiff cannot establish that he was a "seaman" at the time of his injury, all of his maritime claims fail. "[A] Jones Act seaman, who possesses the full range of traditional seamen's rights and remedies, cannot maintain a... seaworthiness action against a vessel on which he is not a crew member." Smith v. Harbor Towing & Fleeting, Inc., 1991 AMC 986, 990; 910 F.2d 312 (5th Cir. 1990). "The right to maintenance and cure applies only to 'seamen' who are injured or fall ill while 'in service of the ship.'" Whitman v. Miles, 387 F.3d 68, 71-72 (1st Cir. 2004) (citation omitted). "The initial prerequisite for recovery on any of plaintiff's claims [for maintenance and cure, unearned wages, and for 'unseaworthiness' under general maritime law] in this matter is that plaintiff was a 'seaman' at the time of his accident." Lara v. Arctic King Ltd., 178 F. Supp. 2d 1178, 1179 (W.D. Wash. 2001).

Under the Jones Act, status as a "seaman" depends on three factors: (1) the vessel on which the claimant was employed must be in navigation; (2) the claimant must have a more or less permanent connection with the vessel; and (3) the claimant must be aboard primarily to aid in navigation. Bullis v. Twentieth Century-Fox Film Corp., 1973 AMC 1292, 1293; 474 F.2d 392, 393 (9th Cir. 1973) (the "Bullis test").

Gizoni v. Southwest Marine, Inc., 1991 AMC 711, 713; 909 F.2d 385 (9th Cir. 1990).

Defendant argues that Plaintiff cannot satisfy the requirement that the vessel in question was "in navigation" at...