Opinion Information Sheet

			

      IN THE SUPREME COURT OF THE STATE OF WASHINGTON

DANA CLAUSEN,                               )
                                            )       No. 85200-6
                      Respondent,           )
                                            )
       v.                                   )       En Banc
                                            )
ICICLE SEAFOODS, INC.,                      )
                                            )
                      Appellant.            )       Filed March 15, 2012
_____________________________               )

       C. JOHNSON, J. --  This case involves a maritime claim for maintenance and 

cure and whether, under federal maritime law, a judge, instead of a jury, awards 

attorney fees following the jury award of compensatory and punitive damages in 

favor of an injured seaman against the employer for willful failure to pay 

maintenance and cure. This case also involves whether the jury's award for punitive 

damages must be limited and reduced under federal maritime law. 

       We hold that a judge determines and awards attorney fees in a maintenance 

and cure case and that the jury's punitive damage award for the willful withholding 

of maintenance and cure is not limited by federal maritime law cases. We affirm.   

Cause No.  85200-6 

                                           FACTS

       Dana Clausen worked on board Icicle Seafoods' Bering Star as second 

engineer when he sustained his injuries. As an engineer, he performed various 

duties, including fixing machinery used aboard the vessel. In February 2006, 

Clausen suffered serious injury to his lower back, neck, and hand when he lifted a 

122-pound piece of steel. After reporting the injury to Icicle, he went ashore in 

Alaska for initial medical care and was eventually sent home to Louisiana for further 

care. 

       Clausen encountered persistent difficulties in getting Icicle and its adjusting 

firm, Spartan, to meet its obligation to pay him maintenance and cure, traditional 

maritime remedies providing living and medical expenses, during his recovery. 

During this period, Clausen was unable to work due to his injuries. As part of its 

obligation to pay maintenance for Clausen's living expenses, Icicle paid Clausen 

$20 per day to cover lodging, utilities, and meals. Clausen resorted to living in a 

recreational vehicle with a leaking roof and with no heat, air conditioning, running 

water, or toilet facilities. Additionally, on its obligation to pay cure for Clausen's 

medical expenses, Icicle delayed or refused to pay for treatment that Clausen's 

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Cause No.  85200-6 

doctors recommended.

       In a May 2006 report to Icicle, Spartan confirmed that Clausen's injuries 

were likely career-ending and recommended that Icicle authorize settlement before 

Clausen secured legal representation. In a June 2006 letter, Clausen's doctor told 

Icicle that Clausen needed treatment by epidural spinal injections and was a 

candidate for back surgery. About a week later, an internal report recommended that 

Icicle meet face-to-face with Clausen to propose settlement. The June 2006 letter 

was never disclosed to Clausen.

       In September 2007, Icicle filed suit in federal court against Clausen to 

terminate Clausen's right to maintenance and cure alleging that he impeded their 

right and obligation to investigate his claim. After the complaint was filed, Clausen 

hired counsel who issued subpoenas for Spartan's and his medical providers'

records, which revealed that Icicle had extensively monitored and investigated the 

ongoing status of his condition. 

       Upon learning of Icicle's actions, Clausen filed the present action in King 

County Superior Court and Icicle's suit in federal court was dismissed. Clausen 

sought damages for Icicle's negligence under the Jones Act, 46 U.S.C. § 30104, 

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Cause No.  85200-6 

unseaworthiness of the Bering Star, and wrongful withholding of maintenance and 

cure. The jury found Icicle negligent under the Jones Act, awarding Clausen 

$453,100 in damages.  Clerk's Papers (CP) at 111-12. The jury also found that 

Icicle was callous or willful and wanton in its failure to pay maintenance and cure, 

awarding Clausen $37,420 in compensatory damages for maintenance and cure plus 

$1.3 million in punitive damages for Icicle's willful misconduct.  CP at 108, 114.

       After the verdict, Clausen filed a posttrial motion requesting attorney fees. 

Icicle opposed the fee request by moving for judgment as a matter of law, arguing 

that under federal maritime law only the jury could award attorney fees. Icicle also 

argued for a reduction in the amount of attorney fees sought because Clausen's 

attorneys failed to keep contemporaneous time records, reducing the reliability and 

"reasonableness" of the hours claimed. The trial court denied Icicle's motion, ruling 

the attorney fees issue was for the court, not the jury; the court also noted Icicle 

took no issue with the amount of time spent on various tasks, making no claim that 

Clausen's attorneys wasted time or duplicated efforts. The court determined that 

under federal maritime law, Clausen could recover attorney fees and costs only for 

time spent on his maintenance and cure claim. Because Clausen's three claims were 

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Cause No.  85200-6 

intertwined, making the hours spent on each claim difficult to segregate, the trial 

court reduced his total fees and costs by 10 percent and awarded $387,558.00 in 

fees and $40,547.57 in costs. CP at 432.

        Icicle also filed a motion to amend the judgment challenging the jury's 

punitive damage award, which the trial court denied.

       Icicle appealed. We granted Clausen's motion requesting transfer to this court 

due to the significant federal maritime law issues involved. Icicle assigns error to the 

award for attorney fees and to the punitive damages related to maintenance and 

cure. Icicle challenges the amount of the attorney fees award, and it argues that 

under federal maritime law (1) only the jury can award attorney fees as damages, 

and (2) punitive damages cannot exceed compensatory damages. We affirm the trial 

court.

                                           ISSUES

   1. Whether under general maritime law, the court and not the jury determines 

       the amount of attorney fees related to the jury's punitive damage award for 

       the employer's willful withholding of maintenance and cure.

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Cause No.  85200-6 

   2. Whether under general maritime law, punitive damages for willful 

       withholding of maintenance and cure must be capped.

                                         ANALYSIS

   1. Attorney fees

       The trial court concluded that the attorney fees issue in a maintenance and 

cure action was for the court, not the jury, and awarded fees and costs.  Icicle 

contends the trial court erred because attorney fees are a form of punitive damages 

to be found by the jury. Icicle also objects to the amount of fees the trial court 

awarded. These issues involve both questions of law and review of discretionary 

orders by the trial court.

       Maritime actions brought in state courts are governed by federal maritime 

law, both common law (referred to here as "general") and statutory. Injured seamen 

do not qualify for state or federal worker compensation for on-the-job-injuries. 

RCW 51.12.100(1); 33 U.S.C. § 902(3)(G). Seamen, however, retain the right to 

sue for personal injury under the Jones Act. Additionally, under general maritime 

law, the injured seaman can seek an award for unpaid maintenance and cure. 

"Maintenance" is the living allowance for food and lodging while "cure" is the right 

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Cause No.  85200-6 

to necessary medical services. Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528, 58 

S. Ct. 651, 82 L. Ed. 993 (1938). A seaman is also entitled to unearned wages for 

the period from the onset of the injury or illness until the end of the voyage. The 

right to maintenance and cure extends to the point of maximum medical cure. 

Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962). 

       The doctrine of maintenance and cure, an ancient right in British admiralty 

law, was introduced into American maritime law by Justice Story in Harden v. 

Gordon, 2 Mason 541, 11 F. Cas. 480, 482-83 (C.C.D. Me. 1823). Justice Story 

expressed concern for seamen whose work made them vulnerable to sickness from 

climate, peril, and exhausting labor; who suffered away from home from disease, 

poverty, and lack of nourishment; and whose earnings were insufficient to provide 

for the expenses of their sickness. Subsequently, the United States Supreme Court 

recognized the right in The Osceola, 189 U.S. 158, 169, 23 S. Ct. 483, 47 L. Ed. 

760 (1903).  Since then, the Court has articulated that the underlying policy of 

maintenance and cure is (1) to protect the poor and improvident seaman from being 

abandoned while ill or injured in foreign ports, (2) to induce employers to protect 

the safety and health of seaman while in service, and (3) to induce employment in 

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Cause No.  85200-6 

maritime service. Calmar, 303 U.S. at 528 (citing Harden, 11 F. Cas. 480).

       Because maintenance and cure is a right created under common law, courts 

have fashioned equitable remedies to further the underlying policies. As to recovery 

of attorney fees, the United States Supreme Court recognized the remedy in 

Vaughan. In that case, the lower court had denied fees on the basis that the fees 

were not recoverable in a breach of contract suit. The United States Supreme Court 

reversed, recognizing that the duty to provide maintenance and cure was created at 

law, not by an employment contract. As a result, the Court held that while the 

failure of an employer to pay maintenance and cure gives rise to damages for the 

suffering and physical disability that followed, the recovery for those damages could 

also include "necessary expenses," including counsel fees. The Court then 

emphasized that the employer's callous and willful behavior in withholding 

maintenance and cure forced the seaman to bring suit to recover what was plainly 

owed to him under the law. Vaughan, 369 U.S. at 531-33. Thus, under general 

maritime law, it developed that a finding that an employer acted callously or 

willfully in withholding maintenance and cure was a basis for recovering attorney 

fees and punitive damages.

                                               8 

Cause No.  85200-6 

       Icicle contends, based on the Court's reasoning in Vaughan and purported 

clarification in Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 129 S. Ct. 2561, 

174 L. Ed. 2d 382 (2009), that attorney fees are punitive, the fees are a form of 

punitive damages in maintenance and cure actions. Icicle argues that because the 

jury always awards and calculates damages, as a matter of substantive general 

maritime law, the trial court's determination and attorney fees award should be 

vacated. Icicle cites Fifth Circuit Court of Appeals cases as support for this 
argument.1 We disagree. 

       The United States Supreme Court in Vaughan was unclear on whether the 

fees were compensatory or punitive in nature, but its rationale and other cases citing 

Vaughan leads us to conclude the fees are compensatory. While the fees are 

awarded on the same general basis as punitive damages, that is, only upon a callous 

and willful finding, that does not make the fees punitive. The purpose of punitive 

damages is to punish the defendant and deter similar conduct. On the other hand, the 

purpose of compensatory damages is to make the plaintiff whole for their injury, for 

example for pain and suffering, and in this case, for maintenance and cure payments. 

1 See, e.g., Holmes v. J. Ray McDermott & Co, 734 F.2d 1110 (5th Cir. 1984).

                                               9 

Cause No.  85200-6 

The United States Supreme Court made clear that the failure to give maintenance 

and cure may give rise to damages for pain and suffering but that the "recovery may 

also include 'necessary expenses.'" Vaughan, 369 U.S. at 530 (quoting Cortes v. 

Baltimore Insular Line, 287 U.S. 367, 371, 53 S. Ct. 173, 77 L. Ed. 368 (1932)).

There necessary expenses were the attorney fees the seaman incurred for being 

forced to bring a suit.  Vaughan, 369 U.S. at 530. Thus, while the fees are tied to a 

certain level of culpability, the focus is on compensating the seaman for necessary 

expenses incurred in litigation, rather than on punishing and deterring the employer. 

Although fee-shifting in this context may have a punitive feel, it serves to 

compensate the seaman for being forced to bring an action to recover what he was 

clearly entitled to all along. 

       At common law, an award for attorney fees is created in equity as an 

exception to the American rule that parties bear their own costs and fees in 
litigation.2 In a maintenance and cure action, equity supports a recovery of such fees 

2 Under the American rule, attorney fees are recoverable only when authorized by private 
agreement of the parties, or statute, unless an equitable exception exists. Summit Valley Indus., Inc. v. 
Local 112, United Bhd. of Carpenters & Joiners of Am., 456 U.S. 717, 721, 102 S. Ct. 2112, 72 L. Ed. 2d 511 
(1982).

                                              10 

Cause No.  85200-6 

only where the payments were withheld because of the employer's misconduct; the 

jury must find callous or willful behavior, which it did here. In other cases, the 

United States Supreme Court discusses the fees award in Vaughan as an equitable 

exception to the American rule. See, e.g., Summit Valley Indus., Inc. v. Local 112, 

United Bhd. of Carpenters & Joiners of Am., 456 U.S. 717, 721, 102 S. Ct. 2112, 

72 L. Ed. 2d 511 (1982); Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 

240, 258-59, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975). Several circuits also treat 

Vaughan as establishing an equitable basis for awarding attorney fees and have 

affirmed the trial judge's determination of the amount of fees after the jury returns a 
favorable verdict to the seaman.3 The Second Circuit in Incandela v. American 

Dredging Co., 659 F.2d 11, 15 (2d Cir. 1981), has held that fees are assessed by the 

trial court after the jury makes the factual finding as to whether the defendant's 

actions are willful and arbitrary. See also Williams v. Kingston Shipping Co., 925 

F.2d 721 (4th Cir. 1991). Likewise, we interpret Vaughan as creating an equitable 

3 For example, comments to the Ninth Circuit Model Civil Jury Instruction 7.12, "Maintenance 
and Cure -- Willful and Arbitrary Failure To Pay," provide, "If the jury finds that the defendant 
willfully and arbitrarily failed to pay maintenance or cure, the plaintiff will be entitled to 
reasonable attorneys' fees as determined by the court." Manual of Model Civil Jury Instructions 
for the District Courts of the Ninth Circuit 120 cmt. (2007).

                                              11 

Cause No.  85200-6 

basis to award attorney fees under the American rule.

       Icicle contends the Townsend decision, a case in which the United States 

Supreme Court cited Vaughan in the context of punitive damages, clarifies or alters 

the rule regarding recovery of attorney fees. We find Icicle's reliance on Townsend

unpersuasive because the issue in Townsend was not whether the attorney fees

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Cause No.  85200-6 

were a form of punitive damages. Rather, the issue was whether remedies available 

at general maritime law were restricted because of the Jones Act. The Court held 

that remedies under general maritime law, such as punitive damages, remained 

available. The Jones Act created a statutory cause of action for negligence, which 

had been barred at general maritime law. Because Congress, by enacting the Jones 

Act, created a new cause of action, the Court recognized the Act expanded and 

supplemented, rather than restricted, the rights of seamen under maritime law. And 

while the Jones Act excluded recovery of certain types of damages, such as for loss 

of society or lost future earnings, the Court held that those restrictions applied only 

to claims brought under the Jones Act. In other words, the statutory limitations did 

not affect the types of damages recoverable under general maritime law, such as 

punitive damages in maintenance and cure actions. Townsend, 129 S. Ct. 2565, 

2570-71. While Vaughan is cited, the issue and holding in Townsend relates to the 

continued viability of common law causes of action and remedies, not whether a 

recovery of attorney fees under Vaughan is punitive or compensatory. Given this, 

Townsend cannot stand for or be read to alter the nature or availability of attorney 

fees. 

                                              13 

Cause No.  85200-6 

       Allowing a judge to determine and calculate an equitable fees award is 

consistent with our practice in Washington and makes procedural sense. Primarily, 

the fee recovery is not part of the plaintiff's substantive claim for damages; in this 

case, the seaman's damages are for maintenance and cure. The plaintiff must prove 

the substantive claim and further, the jury must specifically find callous or willful 

conduct before a plaintiff qualifies for an attorney fees recovery. Given this, it is 

procedurally impractical to have a jury consider evidence of attorney fees when it 

has not yet made the necessary finding to award those fees. The attorney fees issue 

becomes relevant only after a verdict is rendered, that is, posttrial. Even then, the 

plaintiff's fees recovery is subject to the judge's determination that there is an 

equitable basis to award fees.  And, a trial judge, who is more familiar with 

advocacy and trial preparation, is better suited to determine the reasonableness of 

the fees award and whether particularities of the case require the fee request to be 

adjusted. We agree with the trial court and hold that under general maritime law, a 

trial judge, and not the jury, calculates an attorney fees award related to the 

employer's willful withholding of maintenance and cure.

       After the jury returned the verdict, Clausen requested attorney fees in a 

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Cause No.  85200-6 

posttrial motion. Icicle challenges the amount awarded. We review a trial court's 

award of attorney fees for an abuse of discretion. Chuong Van Pham v. Seattle City 

Light, 159 Wn.2d 527, 538, 151 P.3d 976 (2007) (citing State ex rel. Carroll v. 

Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). A trial court initially determines 

attorney fees and costs using the "lodestar" calculation, multiplying the total number 

of hours reasonably expended in the litigation by the reasonable hourly rate. Once 

the lodestar has been calculated, the court may adjust the fee to reflect factors not 

considered yet. The two categories for adjustment are based on whether the fee was 

contingent on the outcome and the quality of work performed. The party requesting 

an adjustment has the burden to show the deviation is justified. Bowers v. 

Transamerica Title Ins. Co., 100 Wn.2d 581, 597-99, 675 P.2d 193 (1983). 

       The trial court estimated that 90 percent of the attorneys' time was spent on 

issues related to maintenance and cure and accordingly, reduced total fees and costs 

by 10 percent. The court recognized that maintenance and cure issues were present 

from the beginning of the case and that 12 out of 14 witnesses testified about those 

issues. The court also acknowledged that this was the attorneys' first case involving 

punitive damages for maintenance and cure, suggesting that the issue required a 

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Cause No.  85200-6 

significant amount of time. 

       Icicle contends it was improper for the trial court to segregate hours spent on 

the maintenance and cure claim from other claims based on a generalized percentage 

reduction rather than on actual hourly records. Appellate courts, however, have 

permitted the use of a percentage reduction in segregating fees and costs when, as 

here, the specifics of the case make segregating actual hours difficult. Other 

maintenance and cure cases support the trial court's determination here. See Deisler 

v. McCormack Aggregates Co., 54 F.3d 1074, 1087 (3rd Cir. 1995) (recognizing 

the difficulty in segregating hours and holding the use of 10 percent reduction to 

calculate fees and costs not an abuse of discretion); see also Peake v. Chevron 

Shipping Co., No. C00-4228 MHP, 2004 A.M.C. 2778, 2791 (N.D. Cal. Aug. 10,

2004) (unpublished) ("overlap" in claims warranted a twenty percent reduction).

       Icicle argues the trial court's reliance on Deisler and Peake is misguided. 

Icicle contends that in Deisler the 10 percent reduction was justified because the 
plaintiff had to prove an accident occurred,4 arguably taking more time, whereas in

4 In Deisler, the employer refused to pay maintenance and cure based on its claim the seaman had 
not been injured in an accident. The accident also related to the negligence claim under the Jones 
Act. Because the trial court found it impossible to segregate the maintenance and cure claim from 
the Jones Act claim, the trial court apportioned the time 90 percent to maintenance and cure and

                                              16 

Cause No.  85200-6 

this case Clausen did not. Still, this difference does not necessarily mean the 

maintenance and cure claim would take less time in Clausen's case. Each case has

its own peculiarities, and the trial court is best situated to make these 

determinations.

       Additionally, Icicle contends that in Peake the court awarded only 44 percent 

of fees and costs, but Peake actually supports the trial court's decision here. There, 

the court accepted counsels' contention that 80 percent of the time was spent on the 

maintenance and cure claim but reduced the number of hours after finding some of 

the hours were duplicative and inadequately documented. Here, Icicle makes no 

claim that the hours themselves were invalid. Again, the trial court is in the best 

position to make this determination. No abuse of discretion has been shown. 

       Icicle also does not show the trial court abused its discretion in setting the 

hourly rate for Clausen's attorneys. An attorney's hourly rate is determined in 

reference to a reasonable rate. The court may consider the attorney's usual billing 

rate, level of skill required by the litigation, time limitations imposed on the 

litigation, the amount of potential recovery, the attorney's reputation, and the 

10 percent to the Jones Act claim and reduced attorney fees by 10 percent. Deisler, 54 F.3d at 
1087.

                                              17 

Cause No.  85200-6 

undesirability of the case. Bowers, 100 Wn.2d at 597. Here, the court supported its 

findings based on declarations from Clausen's attorneys describing their 

qualifications, which Icicle did not challenge. The court also considered a survey 

indicating that the hourly rate was reasonable for attorneys with similar 

qualifications. 

       The record here reflects that the trial court properly exercised its discretion in 

determining the number of hours related to the maintenance and cure claim and the 

reasonable hourly rate for Clausen's attorneys. We affirm the trial court's award of 

attorney fees and costs.

2. Punitive Damages

       Icicle contends that under federal law, the trial court erred in failing to reduce 

the judgment by not capping the jury's $1.3 million punitive damage award. Icicle 

makes no assertion that Clausen was not entitled to punitive damages or that the 

trial court used the incorrect standard to determine whether punitive damages were 

excessive. Rather, Icicle argues the trial court was required to reduce the jury's 

award of punitive damages in accordance with Exxon Shipping Co. v. Baker, 554 

U.S. 471, 128 S. Ct. 2605, 171 L. Ed. 2d 570 (2008), where the United States

                                              18 

Cause No.  85200-6 

Supreme Court reduced a punitive damages award applying a 1:1 ratio to 

compensatory damages. We disagree with Icicle's reading of the scope of the Exxon

case.

       In the Exxon case, the United States Supreme Court's decision involved 

punitive damages awarded for the Exxon Valdez oil spill in Alaska. The jury had 

awarded $507 million in compensatory damages and $4.5 billion in punitive 

damages, which, upon remand by the Ninth Circuit, was reduced to $2.5 billion. The 

United States Supreme Court further limited the punitive damages award, capping 

punitive damages at a 1:1 ratio to compensatory damages. In its decision, the Court 

discusses the history, development, and justifications underlying the creation of the 

punitive damages remedy. The Court recognized that a punitive damages remedy 

advances the goals of punishing egregious and willful behavior resulting in injury 

and punishing conduct designed and intended to provide some financial gain to the 

offending party, as well as deterring similar conduct. The Court also recognized that 

punitive damages awards failing to advance these goals not only would be carefully 

scrutinized, but could be subject to constitutional due process concerns. In essence, 

the Court established that, under general maritime law, punishment for conduct 

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Cause No.  85200-6 

minimally related to the goals of punishment could be limited and subject to a 1:1 

ratio with compensatory damages, which in the Exxon case were substantial. 

Important to the analysis here, throughout the Exxon case, the Court emphasized it 

was faced with facts establishing that Exxon's conduct was not at the extreme end 

of the scale of egregiousness, no profit motive was expressly involved, and there 

was already a substantial recovery for damages. Exxon, 554 U.S. at 510-13. 

       We find nothing in the Exxon case establishing a general rule limiting the 

jury's role in determining appropriate damages. The Exxon case cannot be read as 

establishing a broad, general rule limiting punitive damage awards, primarily 

because nowhere in the opinion can such a rule be found. To the contrary, the 

United States Supreme Court expressly limits its holding to the facts presented. In 

the first paragraph of the opinion, the issue is framed as "whether the award . . . in 

this case is greater than maritime law should allow in the circumstances." Exxon, 

554 U.S. at 476 (emphasis added).

       Toward the end of its analysis, the Court again, in the context of analyzing 

the spectrum of laws and cases establishing limits on punitive awards, observes

". . . the upper limit is not directed to cases like this one, where the tortious action 

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Cause No.  85200-6 

was worse than negligent but less than malicious, . . . the 3:1 ratio . . . applies to 

awards in quite different cases involving . . . malicious behavior and dangerous 

activity carried on for the purpose of increasing a tortfeasor's financial gain. We 

confront, instead, a case of reckless action, profitless to the tortfeasor." Exxon, 554 

U.S. at 510-11 (footnotes omitted). Continuing in that same paragraph, during its 

discussion of limits established legislatively, the Court states, "[t]hus, a legislative 

judgment that 3:1 is a reasonable limit overall is not a judgment that 3:1 is a 

reasonable limit in this particular type of case." Exxon, 554 U.S. at 510-11 

(emphasis added). Nothing in the Exxon opinion can be read as overruling cases 

allowing higher punitive awards or limiting the government's ability to statutorily 

provide other limits. Quite the opposite, the Court seems to embrace an approach of 

applying a variable limit based on the tortfeasor's culpability. Exxon, 554 U.S. at 

510 n.24.

       Here, as found by the jury and confirmed by the trial court, Icicle's conduct 

lies at the extreme end of the scale. The jury found that Icicle acted callously or 

willfully and wanton in its failure to pay maintenance and cure. And the trial court, 

in denying Icicle's motion to reduce the punitive damages award, entered findings of 

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Cause No.  85200-6 

fact emphasizing Icicle's egregious conduct. The court found that Icicle intentionally 

disregarded Clausen's health by refusing to pay for his spinal injections and surgery

that Icicle's own "hand-picked" doctor had recommended, and that Icicle provided 

Clausen only $20 per day in maintenance and knew Clausen was practically 

homeless, living in a broken down recreational vehicle, yet it wanted Clausen to 

take the "bait" and settle early without legal representation. The court also found 

that Icicle deliberately made false statements in its federal court complaint seeking 

to terminate Clausen's maintenance and cure; that Icicle's conduct was motivated 

by profit; and that the size of the punitive damages award was required because 

Icicle needed substantial deterrence not to treat other workers in the same way it 

treated Clausen, noting that Icicle had claimed no wrongdoing throughout the suit. 

       Unlike the reckless conduct the Exxon Court faced, here, the jury found and 

the trial court described in depth that Icicle's actions were far from reckless and 

nearer the "most egregious" end of the culpability scale. The Exxon Court was clear 

that it was applying a ratio limiting the punitive damages award due to the 

circumstances of the case, that is, reckless conduct not expressly motivated by 

profit, where a substantial compensatory damages recovery existed. But while it 

                                              22 

Cause No.  85200-6 

limited the punitive damages award in Exxon, the Court embraced a variable limit 

approach based on culpability. Given the facts of our case, it is appropriate to apply 

that principle here. Icicle's conduct was not just reprehensible, it was egregious.

       The availability of punitive damages, without a 1:1 ratio to compensatory 

damages, for willful withholding of maintenance and cure is necessary because it 

also serves as a deterrent. A variable punitive damages award creates a disincentive 

to employers who would otherwise prefer to hold out on paying maintenance and 

cure until a suit is filed, if at all. Because seamen do not qualify for state or federal 

worker compensation, their only recourse from being abandoned when sick or 

injured on the job is maintenance and cure. But it appears Icicle wanted to do just 

that by intentionally withholding maintenance and cure, at the expense of Clausen's 

health, and then by attempting to terminate maintenance and cure. Icicle, and any 

employer, must be deterred from profiting at the expense of their employee's health. 

The availability of punitive damages serves as this deterrent since the simple 

solution for employers to avoid exposure to punitive damages in a lawsuit is by 

complying with their maritime responsibilities. 

       Lastly, Icicle contends the trial court erred when calculating the punitive 

                                              23 

Cause No.  85200-6 

damages ratio because it included the attorney fees award in the compensatory

                                              24 

Cause No.  85200-6 

damages figure.5 The compensatory nature of attorney fees does not change because 

the attorney fees are awarded posttrial rather than with the jury's compensatory 

damages award. Courts in other jurisdictions include attorney fees as part of the 

compensatory damages award for punitive damages ratio comparison purposes. See, 

e.g., Blount v. Stroud, 395 Ill. App. 3d 8, 915 N.E.2d 925, 944, 333 Ill. Dec. 854 

(2009) (courts consider attorney fees as part of compensatory award when 

considering the punitive damages award ratio); Action Marine, Inc. v. Cont'l

Carbon, Inc., 481 F.3d 1302, 1321 (11th Cir. 2007); Willow Inn, Inc. v. Pub. Serv. 

Mut. Ins. Co., 399 F.3d 224, 235-36 (3rd Cir. 2005). As mentioned, the reason 

Clausen incurred any attorney fees was for having to bring a suit to recover 

maintenance and cure payments. Like a recovery for maintenance and cure 

payments, recovery of attorney fees is compensatory in that those fees attempt to 

make Clausen whole for the employer's actions in intentionally failing in its 

maritime duty to provide maintenance and cure. It was proper for trial court to 

5 After including the attorney fees in the compensatory award, the trial court found the punitive 
damages award was less than three times the size of the compensatory award and within due 
process limits. Because Icicle does not contend the punitive damages award violates due process, 
we need not determine whether the trial court used the correct standard or applied it properly.

                                              25 

Cause No.  85200-6 

include attorney fees as part of the compensatory damages award when calculating 

the punitive damages ratio. No error occurred.

                                       CONCLUSION

       We conclude that under federal maritime law, the trial court calculates an 

attorney fee award related to a maintenance and cure action. We also conclude that 

under federal maritime law, the punitive damages award as determined by the jury 

here, based on the callous or willful and wanton withholding of maintenance and 

cure, was proper.

       We affirm. We award costs, including reasonable attorney fees, to Clausen as 
the prevailing party pursuant to RAP 18.1(a).6

6 On review, because this award is primarily based in equity, not contract or statute, we award 
reasonable attorney fees and costs to Clausen on the same basis supporting the trial court's 
attorney fees award.

                                              26 

Cause No.  85200-6 

AUTHOR:
       Justice Charles W. Johnson

WE CONCUR:
       Chief Justice Barbara A. Madsen

                                                        Justice Debra L. Stephens

       Justice Tom Chambers                             Justice Charles K. Wiggins

       Justice Susan Owens

       Justice Mary E. Fairhurst

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