Williamson v. Western-Pacific Dredging Corporation

• Decision Date: 19 August 1969
• Docket Number: Civ. No. 68-174.
• Citation: 304 F. Supp. 509
• Parties: Judith Barbara WILLIAMSON, Administratrix of the Estate of Joel Dwaine Williamson, Deceased, Plaintiff, v. WESTERN-PACIFIC DREDGING CORPORATION, an Oregon corporation, Defendant. WESTERN-PACIFIC DREDGING CORPORATION, an Oregon corporation, Third-Party Plaintiff, v. Don L. FERGUSON and Portland Seattle Freight Lines, a California corporation, Third-Party Defendants.
• Court: U.S. District Court — District of Oregon

304 F. Supp. 509

Judith Barbara WILLIAMSON, Administratrix of the Estate of Joel Dwaine Williamson, Deceased, Plaintiff, v. WESTERN-PACIFIC DREDGING CORPORATION, an Oregon corporation, Defendant.

WESTERN-PACIFIC DREDGING CORPORATION, an Oregon corporation, Third-Party Plaintiff, v. Don L. FERGUSON and Portland Seattle Freight Lines, a California corporation, Third-Party Defendants.

Civ. No. 68-174.

United States District Court D. Oregon.

August 19, 1969.

COPYRIGHT MATERIAL OMITTED

Walter H. Evans, Jr., and William D. Peek, Portland, Or., for plaintiff.

Lloyd W. Weisensee, Gray, Fredrickson & Heath, Portland, Or., for defendant Western Pacific.

John Gordon Gearin, Portland, Or., for third-party defendant Ferguson.

Duane Vergeer, Vergeer, Samuels, Roehr & Sweek, Portland, Or., for third-party defendant Portland Seattle Freight Lines.

FINDINGS AND OPINION

KILKENNY, District Judge:

This action grows out of an automobile accident between a vehicle driven by third party defendant Ferguson and a truck operated by Portland Seattle Freight Lines. Two counts are involved, (1) maintenance and cure, and (2) damages for wrongful death under the Jones Act.

The accident occurred on December 21, 1967, in Clark County, Washington. Western-Pacific denies liability for maintenance and cure and for damages under the Jones Act and affirmatively alleges that if the accident arose out of and in the course of decedent's employment, that plaintiff's sole remedy is under the Workmen's Compensation Law of the State of Oregon under its extra-territorial coverage.

Western-Pacific, with leave of Court, joined as third party defendants in admiralty, the driver, Ferguson, and the truck line, Portland Seattle Freight Lines. It claims indemnity against each. Third party defendants deny all liability to plaintiff and to Western-Pacific.

Plaintiff is the administratrix of the estate of Joel Dwaine Williamson and has been authorized by the Circuit Court of the State of Oregon to prosecute this action. Defendant Western-Pacific is an Oregon corporation, with its principal place of business in Portland, Oregon, and is the owner and operator of a dredge named H. W. McCURDY.

The dredge is a vessel 144 feet in length with a beam of 43 feet. It has a gross and net tonnage of 535 tons and is capable of limited movement, by manipulating its spuds and anchors, but is not self-propelled in the usual sense of the word. When the dredge is in use, it customarily operates with the assistance of one or more smaller tugs or tenders, which are self-propelled vessels.

On the indicated date, and for some time prior thereto, the dredge was being operated by Western-Pacific in the performance of a contract with the United States Department of the Army in connection with dredging the Columbia River for the purpose of maintaining and improving the channel for use in navigation and commerce.

For more than two years before the accident, decedent had been employed by Western-Pacific on said dredge, initially as a deck hand and at and prior to the time of the accident as a mate. His duties consisted of assisting in the operation of the dredge and the maintenance thereof and assisting in the navigation and operation of the tender vessels and, when the dredge was being moved, assisting in its navigation. At the time of the accident, the dredge was operating in the Columbia River near Woodland, Washington. It was then operating three shifts of eight hours each per day. The practice of Western-Pacific was to rotate the shifts of its employees, other than employees engaged primarily in maintenance and repair, in such a manner that its employees would work one week on the day, the next week on the swing, and the next week on the graveyard shift.

As construction projects for the improvement of the channel of the Columbia became available, Western-Pacific would bid upon the same and if it received a contract, would move the dredge to the site at places up and down the Columbia River between Astoria and Hood River, Oregon. Likewise, Western-Pacific would designate various points on shore to which its employees should report and at which points its employees would be picked up and discharged by launch at the beginning and end of each shift. Each of the employees, by virtue of a union contract under which each was employed, was entitled to and was paid "travel pay" by Western-Pacific. The amount of the "travel pay" depended on the distance between the project and the city hall in certain designated cities. At the time of the accident, decedent, and its other employees subject to the contract, were receiving $4.00 per day as "travel pay". On the mentioned day, decedent was employed as a mate, Don Ferguson as a deck hand and Edward Roberts as a lever man. In the week beginning December 18, 1967, and ending December 24, 1967, each was employed on the day shift. During that period, decedent and Ferguson adopted the practice of riding, in the same automobile, from the Interstate Bridge at Vancouver to work, each of the individuals driving one day and riding the following. Prior to the accident, the vehicle of Roberts had become unreliable. He then made or was making arrangements to acquire a newer vehicle and, for the period immediately before the date of the accident, the decedent and Don Ferguson had been driving alternate days. Roberts intended to drive continuously, after he had obtained his new car, for a sufficient number of days to equalize the expense and time involved in furnishing and operating an automobile to and from the location of the dredge. Roberts then lived in Vancouver, Washington, Ferguson in Portland and decedent in Clackamas, Oregon. Decedent and Ferguson customarily met in a parking lot at the Safeway Store, Jantzen Beach, at the Oregon end of the Interstate Bridge. From there they drove across the bridge to Vancouver, picked up Roberts and the three would proceed to work. At the termination of the shift, the three would proceed by car to the freeway exit in Vancouver, leave Roberts, and drive to the Jantzen Beach parking lot where Ferguson and decedent would separate. The hours of the shifts being worked by the men were from 7:30 A.M. to 3:30 P.M. on the day, 3:30 P.M. to 11:30 P.M. on the swing and 11:30 P.M. to 7:30 A.M. on the graveyard shift.

Each of the three employees, at times, were subject to being required to work extra hours past the end of their regular shift to replace a member of the succeeding shift who did not report for work, and then work either a half or a whole shift until a replacement for the absent member could be arranged. At the time of the accident, Leroy Nielsen was superintendent of Western-Pacific's operations in connection with the dredge. He was the top ranking employee of Western-Pacific who customarily visited and was in charge of the operation of the dredge and its crew.

On the fatal day, about 7:00 A.M., Ferguson's vehicle was being operated by him, with decedent in the right front seat and Roberts in the rear. Some 15 miles north of Vancouver on Interstate Highway No. 5, on the way to work, the vehicle collided with a truck and tractor combination owned and operated by third party defendant Portland Seattle Freight Lines. It is admitted that the impact occurred on the westerly or southbound portion of said highway. The exact cause of the accident and any negligence in connection therewith is in dispute between the parties. Decedent received serious injuries in said accident. He died the same day at a Vancouver hospital. His death was a proximate result of the injuries he had received in said accident.

Argonaut Insurance Company, hereinafter referred to as "Argonaut", was and is a California corporation, engaged in the business of writing casualty and liability insurance and qualified to do so in the State of Oregon. On December 21, 1967, Western-Pacific was the named insured in certain policies of insurance issued by Argonaut wherein and whereby Argonaut insured defendant within certain limits against any liability of defendant for maintenance and cure, and any liability of defendant under the Jones Act.

On said date, Western-Pacific was subject to the provisions of the Workmen's Compensation Law of the State of Oregon as a subject employer, and had provided coverage under said Workmen's Compensation Law by becoming a direct responsibility employer by filing with the Workmen's Compensation Board of the State of Oregon a contract issued by Argonaut, in which Argonaut agreed to assume without monetary limit the liability of Western-Pacific for compensation for injuries occurring to subject workmen.

Plaintiff incurred medical, hospital, x-ray and ambulance expense in the reasonable sum of $920.65, and funeral and burial expense in the reasonable sum of $1,800.00.

From the Bench, at the close of the trial, I held that the defendant, Don L. Ferguson, the driver of the vehicle in which plaintiff's intestate was riding, was negligent in the following particulars:

(a) In driving at a speed that was greater than was reasonable and prudent under the circumstances then and there existing, to-wit: the impaired visibility, slippery surface due to ice and snow, and the curve in the highway, to-wit: in excess of 35 miles per hour,

(b) In attempting to pass a vehicle while proceeding around a left-hand curve when defendant knew or should have known of the hazard involved by reason of the possibility of ice and snow upon said highway, and the increased danger of skidding while accelerating or braking,

(c) In failing to keep said vehicle under proper control,

(d) In failing to keep a lookout for slick surfaces upon the highway,

(e) In failing to keep his vehicle on the right-hand half of said highway,

(f) In failing to have his vehicle equipped with chains or snow tires.

Moreover, I held that each of said acts of negligence was a proximate cause of decedent's injuries and resulting death.

Prior to trial, I...