Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

IAN DEAN,                                   )       NO. 66075-6-I
                                            )
                      Appellant,            )       DIVISION ONE
                                            )
       v.                                   )
                                            )       PUBLISHED OPINION
THE FISHING COMPANY OF                      )
ALASKA, INC., and ALASKA                    )
JURIS, INC.,                                )
                                            )
                      Respondents.          )       FILED:  March 5, 2012
                                            )

       Leach, A.C.J.  --  In this case of first impression, we must decide whether 

the usual summary judgment standard applies to a seaman's pretrial motion to 

reinstate maintenance and cure.  Ian Dean appeals a trial court decision denying 

his pretrial motion.  He contends that a more lenient standard should apply given 

the solicitude courts have traditionally afforded seamen seeking compensation 

for maritime injuries.  While we are sensitive to this special solicitude, we hold 

the trial court correctly applied the summary judgment standard to deny Dean's 

motion.  

       Dean also claims the trial court erred by denying his motion to compel 

discovery asking if his former employer, the Fishing Company of Alaska (FCA), 

conducted surveillance of him.  We  do not reach this issue as the parties

stipulated to a final judgment in favor of FCA.  Because the trial court properly  

NO. 66075-6-I / 2

denied Dean's summary judgment motion, we affirm.

                                        FACTS

       Dean worked aboard the FCA vessel F/T Alaska Juris as a fish processor 

in May and June 2006.  According to Dean, who is six feet three inches tall, he

worked 16 to 18 hours per day in a confined space with a ceiling height of six 

feet, requiring him to keep his neck constantly bent.  Once on land, Dean sought 

medical treatment at the Seattle Hand Surgery Group for  "numbness and 

tingling" in his hands and neck pain.  The doctor there concluded that Dean had 

"possible bilateral carpal tunnel syndrome" or cervical radiculopathy.  Between 

2006 and 2009, Dean saw several doctors, including a hand specialist, a 

neurologist, and an orthopedist.  Dean received carpal tunnel release surgery in 

2008 and 2009.  Dean          was also diagnosed        with myotonia congenita, a 

neurological condition unrelated to his time aboard the vessel.  FCA initially paid 

maintenance and cure to compensate Dean for his medical and daily living 

expenses.   

       The record demonstrates that during the time frame  at issue,  Dean 

consistently  complained  of neck pain to his doctors.          In May 2008, Dean's 

neurologist recommended physical therapy for his neck.  In August 2008, Dean's 

orthopedist examined him and opined, "I  am not certain that there are any 

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NO. 66075-6-I / 3

curable recommendations for the neck.  I have recommended light massage, 

soaks, and gentle range of motion."  Dean, however, did not undergo treatment 

to alleviate the symptoms in his neck.  

       In June 2009, Dean saw Dr. Alfred Aflatooni, who diagnosed him with 

"cervical radiculopathy, bilateral, with weakness of the neck and arms."   In 

Aflatooni's opinion, Dean's neck injury required                "further neurological 

consultation[,] . . . including MRI [magnetic resonance imaging] of his cervical 

and thoracic region     with . . . EMG  [electromyography]     and nerve conduction 

studies."  In July 2009, an EMG was performed and analyzed.  No treatment 

recommendations were made for Dean's neck at that time.  

       In August 2009, Dean underwent an independent medical examination by 

Dr. Thomas Williamson-Kirkland at FCA's request to determine whether Dean 

had a neck injury subject to FCA's maintenance and cure obligation.  Dr. 

Williamson-Kirkland could find "no evidence in the medical records or my 

examination that any of the symptoms Mr. Dean is currently experiencing in his 

neck are related to his work aboard the vessel."   Because his examination 

yielded normal results, Dr. Williamson-Kirkland had no recommendations for 

treatment.

       In September 2009, FCA discontinued payments to Dean for maintenance 

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NO. 66075-6-I / 4

and cure.  It based its decision on Dr. Williamson-Kirkland's findings, the lack of 

evidence connecting Dean's neck symptoms to his work for FCA, and the 

absence of curative treatment recommendations.  Dean sued FCA in King 

County Superior Court, seeking compensation under the Jones Act1 and general 

maritime law.

       Dean moved for a pretrial reinstatement of maintenance and cure.  

Applying the usual CR 56 summary judgment standard, the trial court denied 

Dean's motion because "[p]laintiff has failed to show that no genuine issue of 

material fact exists as to his entitlement to maintenance and cure such that he is 

entitled to judgment as a matter of law."

       Dean then filed a motion to compel a discovery response to the 

interrogatory:   "Has defendant or anyone acting on its behalf conducted a 

surveillance of the plaintiff or engaged any person or firm to conduct a 

surveillance of the plaintiff or his/her activities?"   FCA objected, asserting that 

the work product doctrine protected the information from discovery.  The trial 

court denied Dean's motion.

       The parties engaged in arbitration.  Following arbitration, they filed a joint 

motion for entry of judgment in FCA's favor, stipulating that the outcome of this 

       1 46 U.S.C. § 30104.
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NO. 66075-6-I / 5

appeal would determine the prevailing party.  The parties also "agreed . . . that 

[they] will jointly request that appellate courts review the trial judge's ruling on 

the discoverability of surveillance films, notwithstanding the fact that trial de 

novo in this matter has been forgone by this stipulation."      The trial court entered 

judgment for FCA, and Dean appeals.

                                      ANALYSIS

       "The United States Constitution extends the judicial power of the federal 

courts 'to all cases of admiralty and maritime jurisdiction,' preserving the general 

maritime law as a species of federal common law."2        Congress has given federal 

courts exclusive jurisdiction over all admiralty or maritime cases  "saving to 

suitors in all cases all other remedies to which they are otherwise entitled."3  

State courts therefore have jurisdiction to consider maritime actions under the 

"saving to suitors" clause, "provided that the state court proceeds in personam

(here, 'at law') and not in rem (here 'in admiralty')."4     Once a plaintiff elects to 

proceed in state court under the "saving to suitors" clause, federal substantive 

law and state procedural law apply.5  

       2 Endicott v. Icicle Seafoods, Inc., 167 Wn.2d 873, 878, 224 P.3d 761 
(2010) (quoting U.S. Const. art. III, § 2), cert. denied, 130 S. Ct. 3482 (2010).
       3 28 U.S.C. § 1333(1).
       4 Endicott, 167 Wn.2d at 878-79 (citing Madruga v. Superior Court, 346 
U.S. 556, 560-61, 74 S. Ct. 298, 98 L. Ed. 290 (1954)).
       5 Endicott,167 Wn.2d at 879, 881.
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NO. 66075-6-I / 6

       Regardless of fault, maritime common law requires a shipowner to pay a 

seaman a daily subsistence allowance (maintenance) and costs associated with 

medical treatment (cure) when the seaman becomes ill or injured in the service 

of a vessel.6  A seaman must establish his or her right to maintenance and cure 

by a preponderance of the evidence.7              Once proven, the entitlement to 

maintenance and cure continues until a seaman reaches "maximum cure," the 

point at which the condition becomes "fixed and stable."8  "The employer bears 

the burden of proving that maximum cure has occurred."9                 In  Vaughan    v. 

Atkinson,10 the United States Supreme Court decreed that any ambiguities or 

doubts regarding payment of a seaman's entitlements must be resolved in favor 

of the seaman.  

       Here, the parties agree that the medical opinions of Dr. Aflatooni and Dr. 

Williamson-Kirkland create a factual dispute concerning Dean's entitlement to 

maintenance and cure for his neck complaints.  However, Dean argues that this 

       6 Tuyen Thanh Mai v. Am. Seafoods Co., 160 Wn. App. 528, 538-39, 249 
P.3d 1030 (2011). 
       7 Mai, 160 Wn. App. at 538-39.       The seaman must prove: (1) his or her 
engagement as a seaman; (2) his or her illness or injury occurred, manifested, or 
was aggravated while in the ship's service; (3) the wages to which he or she is 
entitled; and (4) the expenditures for medicines, medical treatment, board, and 
lodging.
       8 Miller v. Arctic Alaska Fisheries Corp., 133 Wn.2d 250, 268, 944 P.2d 
1005 (1997). 
       9 Mai, 160 Wn. App. at 539. 
       10 369 U.S. 527, 532, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962).
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NO. 66075-6-I / 7

dispute should not preclude pretrial reinstatement of maintenance and cure

because all ambiguities regarding his  entitlement to maintenance and cure 

should be resolved in his favor.  He therefore contends that the trial court erred 

by applying the usual summary judgment standard to resolve his motion.  This 

involves a question of law, which we review de novo.11

       In  Buenbrazo v. Ocean Alaska, LLC,12 Judge Coughenour noted that

"obvious tension exists between the summary judgment standard, which requires 

that all doubts be resolved in favor of the non-moving party, and the canon of 

admiralty law, which provides that all doubts be resolved in favor of the seaman."

This tension has led to inconsistencies in the way that federal courts have 

resolved pretrial motions for maintenance and cure.13  To date, neither the Ninth 

Circuit nor the United States Supreme Court has announced a standard under 

which courts should review pretrial motions seeking maintenance and cure.14  

       11 Endicott, 167 Wn.2d at 880.
       12 No. C06-1347C, 2007 U.S. Dist. LEXIS 98731, at *8 (W.D. Wash. Feb. 
28, 2007).
       13 Buenbrazo, 2007 U.S. Dist. LEXIS 98731, at *8-9 ("Some judges have 
concluded that the imposition of the summary judgment standard to a pre-trial 
motion seeking maintenance and cure is inappropriate.  Other judges, taking 
their cue from the parties' motions for summary judgment, have applied the 
summary judgment standard without any discussion of whether its imposition is 
appropriate.  A final approach is to apply the summary judgment standard 
because 'we are aware of no [other] procedure of obtaining pre-trial judgment on 
the merits of a claim.'") (citations omitted) (quoting Guerra v. Arctic Storm, Inc., 
No. C04-1010L, 2004 WL 3007097, at *1 (W.D. Wash. Aug. 4, 2004)).
       14 Mabrey v. Wizard Fisheries, Inc., No. C05-1499L, 2007 WL 1556529, 
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NO. 66075-6-I / 8

Therefore, we find instructive several unpublished decisions  from the United 

States District Court for the Western District of Washington.15

       In Buenbrazo, the plaintiff moved to compel maintenance and cure.16            As 

here, the plaintiff there argued that his entitlement should be resolved using a 

more  lenient standard than       that used for    summary judgment.  The court 

disagreed, noting its skepticism that Vaughan "was designed to torpedo the well-

established summary judgment procedure."17               Further, the court stated, 

"Disregarding genuine issues of material facts . . . prior to trial before each party 

has had an opportunity to make their case places too heavy a thumb on the 

scale in favor of the seaman."18  The court concluded that "in spite of the canon 

of admiralty law that all doubts and ambiguities should be resolved in favor of 

the seaman, the summary judgment standard should be applied to a pre-trial 

motion to compel maintenance and cure."19  Because a genuine issue of material 

fact existed as to whether the plaintiff suffered injury while in the service of the 

vessel, the court denied the motion to compel maintenance and cure.20  

at *2 (W.D. Wash. May 24, 2007).
       15 The parties also rely on unpublished district court decisions.  Under 
Fed. R. App. P. 32.1, a party may cite unpublished district court orders that were
issued on or after January 1, 2007.  We do not consider decisions cited by the 
parties issued before that date.
       16 Buenbrazo, 2007 U.S. Dist. LEXIS 98731, at *1. 
       17 Buenbrazo, 2007 U.S. Dist. LEXIS 98731, at *10.
       18 Buenbrazo, 2007 U.S. Dist. LEXIS 98731, at *10.
       19 Buenbrazo, 2007 U.S. Dist. LEXIS 98731, at *10.
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NO. 66075-6-I / 9

       Similarly, in Mabrey v. Wizard Fisheries, Inc.,21 the plaintiff moved pretrial 

to compel the defendant to pay cure to treat carpal tunnel syndrome (CTS).  

Again, the parties disputed what standard the court should apply.  The court

concluded that the summary judgment standard should apply because (1) 

neither the Supreme Court nor the Ninth Circuit have provided guidance; (2) the 

local rules and the supplemental admiralty rules do not provide an alternative 

procedure; (3) the Ninth Circuit has affirmed a district court's refusal to compel 

maintenance and cure due to the existence of genuine issues of material fact;

and (4) "whether plaintiff suffers from CTS and, if he does, whether it was 

caused while he was working in service of the vessel are threshold issues on 

which plaintiff will bear the burden of proof at trial."22

       Dean  relies on Gouma v. Trident Seafoods, Inc.23            There, the federal 

district court refused to apply the summary judgment standard to a seaman's 

pretrial motion for maintenance and cure.  The court recognized the holdings in 

Buenbrazo and Mabrey but distinguished them.  The court noted that in those 

       20 Buenbrazo, 2007 U.S. Dist. LEXIS 98731, at *14.  However, citing the 
fact that  "admiralty courts are 'flexible' in operation," the court granted the 
plaintiff equitable relief in the form of a temporary daily stipend.  Buenbrazo, 
2007 U.S. Dist. LEXIS 98731, at *14-15 (quoting Putnam v. Lower, 236 F.2d 
561, 568 (9th Cir. 1956)).
       21 No. C05-1499L, 2007 WL 1556529, at *1 (W.D. Wash. May 24, 2007).
       22 Mabrey, 2007 WL 1556529, at *2.
       23 No. C07-1309, 2008 WL 2020442 (W.D. Wash. May 13, 2008).
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NO. 66075-6-I / 10

cases,  "the purely factual question of whether the seaman had been in the 

service of the vessel when injured was before the court, and the fact of the 

unresolved  'service'   question was central to the findings that a summary 

judgment standard was an appropriate basis on which to resolve the issue."24  In 

Gouma, however, the parties did not dispute that the plaintiff was injured while in 

service  of the defendants' vessel.  Rather, they disputed the necessity of a 

medical procedure and if the plaintiff had reached maximum cure.25  "With that 

understanding,"    the court found the plaintiff entitled to a presumptive 

continuance of maintenance and cure payments.26  

       The court then went on to state in dicta, "Even if a summary judgment 

standard of review were to be applied . . . ,  disputed questions of material 

fact . . . would simply mean that Plaintiff would be entitled to continue to receive 

maintenance and cure until the matter was ultimately resolved at trial."27  

Otherwise, "a vessel owner could escape maintenance and cure obligations at 

any time prior to trial simply by finding a physician who would pronounce the 

seaman at maximum medical cure."28  

       24 Gouma, 2008 WL 2020442, at *2.
       25 Gouma, 2008 WL 2020442, at *2.
       26 Gouma, 2008 WL 2020442, at *2.
       27 Gouma, 2008 WL 2020442, at *2.
       28 Gouma, 2008 WL 2020442, at *2.
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NO. 66075-6-I / 11

       Dean contends that Gouma "incorporate[d] the strictures of Rule 56 with 

the requirement that seamen receive the benefit of all doubts."         He urges us to 

adopt this approach here by applying "a summary judgment standard for issues 

surrounding the seaman's initial entitlement . . . and then give the seaman the 

benefit of 'all doubts and ambiguities' when deciding whether or not maintenance 

should be terminated."  We decline to do so.  Gouma is persuasive authority 

only, and the passage Dean relies upon is dicta.  Additionally, unlike Gouma, at 

issue here is Dean's initial entitlement to maintenance and cure arising from a 

neck injury.  FCA contends that Dean's neck problems did not occur during 

Dean's service to the vessel.  Therefore, this case presents a factual dispute 

more similar to that in Buenbrazo.

       Ultimately, this case must be resolved according to state procedure.  

Dean elected to pursue his claim in state court and therefore under state 

procedural law.  In a Washington state court, a seaman seeking pretrial 

reinstatement of maintenance and cure has a limited number of procedural 

mechanisms at his disposal.29        Here, the trial court resolved Dean's motion 

       29 In addition to moving for summary judgment under CR 56, a seaman 
may move for a temporary preliminary injunction under CR 65(a).  See, e.g., 
Collick v. Weeks Marine, Inc., 397 Fed. App'x 762, 763 (3d Cir. 2010).  We note 
that a CR 65(a) motion would require a seaman to give security.  CR 65(c).  
Alternatively, a seaman could move for an expedited evidentiary hearing under 
CR 42(b).  See, e.g., Lampson Universal Rigging, Inc. v. Wash. Pub. Power 
Supply Sys., 44 Wn. App. 237, 241-42, 721 P.2d 996 (1986) (holding that under 
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NO. 66075-6-I / 12

under the summary judgment standard, which required the court to deny his 

motion because a genuine issue of material fact existed regarding Dean's 

entitlement to maintenance and cure.  On appeal, Dean has not suggested a 

more appropriate procedure        under the civil rules, nor did he suggest an 

alternative procedure below.  While this court is sensitive to the special 

solicitude traditionally paid to seamen,30 we, like Judge Coughenour, do not 

think that the Supreme Court's general admonition in Vaughan was meant to 

"torpedo the well-established summary judgment procedure."           This is especially 

so here, where this court cannot exercise the equitable powers available to 

federal courts sitting in admiralty.31  Therefore, we hold that the trial court did not 

err by applying the summary judgment standard to Dean's motion. 

       Dean also assigns error to the trial court's order denying his motion to 

compel discovery on the existence of surveillance materials.  The question 

whether the work product doctrine protects this information also  presents an 

CR 42(b), a trial court may bifurcate a case to hold a separate evidentiary 
hearing on an evidentiary issue when there is a disputed issue of material fact 
on summary judgment); Johnson v. Marlin Drilling Co., 893 F.2d 77, 80 (5th Cir. 
1990).
       30 See Mai, 160 Wn. App. at 544.
       31 See Vaughan, 369 U.S. at 530 ("Equity is no stranger in admiralty; 
admiralty courts are, indeed, authorized to grant equitable relief.");  see Key 
Bank of Wash. v. S. Comfort, 106 F.3d 1441, 1444 (9th Cir. 1997) ("A district 
court sitting in admiralty has      equitable powers to do 'substantial justice.'"
(quoting Mosher v. Tate, 182 F.2d 475, 479 (9th Cir. 1950))).
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NO. 66075-6-I / 13

issue of first impression in Washington.  However, the parties stipulated to a 

final judgment, making this issue moot.  Because  we generally do not issue 

advisory opinions,32 we decline to consider this issue.

                                    CONCLUSION

       The trial court did not err by applying the summary judgment standard to 

Dean's pretrial motion to reinstate maintenance and cure.  We also decline to 

decide the discovery issue as it will have no effect on the proceedings.  We

affirm.

WE CONCUR:

       32 State ex rel. O'Connell v. Kramer, 73 Wn.2d 85, 86-87, 436 P.2d 786 
(1968).
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