           FILE,,.
            IN OLERKI OFFICI
  aJPR!ME COURT, STA1S C/I'IM--.111-INir:m:roMr.

-.Ay A Y 09 2013
r~JJ/                                                           This opinion-was filed for reeord·
                                                                at                n~~~~·~



                                                                      Ronald R.   arpenter
                                                                      ~upreme Court Clerk


  IN THE SUPREME COURT OF THE STATE OF WASHINGTON

  IAN DEAN,                                        )
                                                   )
                          Petitioner,              )   No. 87407-7
                                                   )
  v.                                               )   ENBANC
                                                   )
  THE FISHING COMPANY OF                           )   Filed:           MAY 09 2013
  ALASKA, INC. and ALASKA                          )
  JURIS, INC.,                                     )
                                                   )
                          Respondents.             )
  _________________________)

              FAIRHURST, J.-Ian Dean worked aboard a fishing vessel owned by The

  Fishing Company of Alaska (FCA). While aboard the vessel, Dean experienced

  pain in his hands and neck. After Dean left the vessel, he sought medical treatment

  and FCA began paying Dean maintenance and cure as required by general

  maritime law. After paying Dean's maintenance and cure for just over three years,

  FCA stopped paying when it obtained the opinion of a physician that Dean's

   injuries had reached maximum cure. At the time when FCA cut off Dean's

  maintenance and cure, Dean's own physician opined that Dean's injuries could
Dean v. Fishing Co. ofAlaska, No. 87407-7


benefit from additional treatment. Dean sued FCA in King County Superior Court.

Dean also filed a motion asking the trial court to order FCA to resume paying

maintenance and cure. The trial court applied a summary judgment standard to

Dean's motion and denied the motion. The Court of Appeals affirmed. We reverse

the Court of Appeals.

                         FACTS AND PROCEDURAL HISTORY

       In May and June 2006, Dean worked as a fish processor aboard the Alaska

Juris, a fishing vessel owned by FCA. During that time, Dean worked in quarters

with a low overhead so that Dean, who is 6 feet, 3 inches tall, had to work stooped

over. Soon after leaving the ship, Dean sought medical treatment for pain in his

neck, wrists, and hands. A physician diagnosed Dean's neck pain as muscle strain

and prescribed over-the-counter medication. Dean did not seek additional

treatment for his neck pain until May 2008, at which time a different physician

recommended physical therapy and light massage. Dean's hand pain was

diagnosed as carpal tunnel syndrome. Dean had carpal tunnel release surgery in

2008 and 2009.

       FCA began paying Dean maintenance and cure soon after Dean left the ship

in June 2006. In August 2009, FCA hired Dr. Thomas Williamson-Kirkland to

examine Dean's neck. Dr. Williamson-Kirkland stated that his examination

revealed Dean's neck to be normal. Furthermore, Dr. Williamson-Kirkland stated,


                                            2
Dean v. Fishing Co. ofAlaska, No. 87407-7


while it was possible Dean's neck had been injured on the Alaska Juris, any injury

"would have resolved within several months of leaving the vessel." Clerk's Papers

at 41. Shortly after Dr. Williamson-Kirkland's examination, FCA stopped paying

maintenance and cure. In October 2009, Dr. Alfred Aflatooni, Dean's treating

physician, opined that Dean could benefit from additional treatment for both his

hand and neck injuries.

        Dean sued FCA in King County Superior Court for personal injury damages

under the Jones Act, 46 U.S.C. § 30104, and for maintenance and cure under

general maritime law. Prior to trial, Dean filed a motion to reinstate maintenance

and cure requesting that the court order FCA to resume paying Dean maintenance

and cure because Dean's neck injuries had not reached maximum cure. Dean's

motion was supported by a declaration of Dr. Aflatooni. The trial court treated the

pretrial motion as a motion for summary judgment. The trial court ruled that,

viewing the facts in the light most favorable to the nonmoving party-FCA-there

were genuine issues of material fact as to whether Dean's injuries had reached

maximum cure. Thus, the trial court ruled that Dean was not entitled to judgment

as a matter of law and did not order FCA to resume paying Dean maintenance and

cure.

        The parties proceeded to arbitration and the arbitrator found in favor of

FCA. Dean and FCA filed a stipulated judgment in favor of FCA contingent on


                                            3
Dean v. Fishing Co. ofAlaska, No. 87407-7


Dean's appeal of the maintenance and cure issue. The stipulated judgment

provided that the outcome of the current appeal would determine the prevailing

party.

         The Court of Appeals affirmed the trial court. Dean v. Fishing Co. ofAlaska,

Inc., 166 Wn. App. 893, 272 P.3d 268 (2012). The Court of Appeals held that the

trial court did not err by applying the summary judgment standard to Dean's

motion to reinstate maintenance and cure. The Court of Appeals suggested that

instead of bringing a motion to reinstate maintenance and cure, Dean could have

sought a temporary preliminary injunction under CR 65(a) or moved for an

expedited evidentiary hearing under CR 42(b). This court granted Dean's petition

for review. Dean v. Fishing Co. of Alaska, Inc., 175 Wn.2d 1017, 290 P.3d 133

(2012).

                                            ISSUE

         Under general maritime law, when a shipowner stops paying maintenance

and cure to an injured seaman, does a trial court err by applying the summary

judgment standard to the seaman's motion to reinstate maintenance and cure?

                                       ANALYSIS

A.       Jurisdiction


         Although federal judicial power "extend[s] ... to all cases of admiralty and

maritime jurisdiction," this court has concurrent jurisdiction to adjudicate this case

                                              4
Dean v. Fishing Co. ofAlaska, No. 87407-7


under the "saving to suitors" clause. U.S. CoNST. art. III, § 2, cl. 1; see 28 U.S.C.

§ 1333(1) ("The district courts shall have original jurisdiction, exclusive of the

courts of the States, of: ( 1) Any civil case of admiralty or maritime jurisdiction,

saving to suitors in all cases all other remedies to which they are otherwise

entitled." (emphasis added)); Endicott v. Icicle Seafoods, Inc., 167 Wn.2d 873,

878, 224 P.3d 761 (2010) ("The 'saving to suitors' clause gives plaintiffs the right

to sue on maritime actions in state court." (citing Madruga v. Superior Court, 346

U.S. 556, 560-61, 74 S. Ct. 298, 98 L. Ed. 143 (1954))).

B.     Standard of Review

       The application of an incorrect legal standard is an error of law that we

review de novo. Jongeward v. BNSF Ry. Co., 174 Wn.2d 586, 592, 278 P.3d 157

(2012) (citing State v. Breazeale, 144 Wn.2d 829, 837,31 P.3d 1155 (2001)). We

also review de novo an order granting summary judgment. Sheikh v. Choe, 156

Wn.2d 441, 447, 128 P.3d 574 (2006). Summary judgment is appropriate if "there

is no genuine issue as to any material fact" and "the moving party is entitled to a

judgment as a matter of law." CR 56(c). Because the issue presented in this case

involves whether summary judgment was the correct legal standard to apply to

Dean's motion to reinstate maintenance and cure, we review this issue de novo.




                                            5
Dean v. Fishing Co. ofAlaska, No. 87407-7


C.     Background

       Under general maritime law, a shipowner has a duty to provide maintenance

and cure to a seaman who "becomes ill or is injured while in the service of the

ship." Vella v. Ford Motor Co., 421 U.S. 1, 3, 95 S. Ct. 1381, 43 L. Ed. 2d 682

(1975); Clausen v. Icicle Seafoods, Inc., 174 Wn.2d 70, 76, 272 P.3d 827 (2012).

"Maintenance" is a per diem living allowance for food and lodging comparable to

what the seaman is entitled to while at sea; "cure" is payment of medical expenses

incurred in treating the seaman's injury or illness. Calmar S.S. Corp. v. Taylor, 303

U.S. 525, 528, 58 S. Ct. 651, 82 L. Ed. 993 (1938); Clausen, 174 Wn.2d at 76. The

shipowner's duty to pay maintenance and cure "continues until the seaman . . .

reaches the point of maximum medical recovery." 1 1 THOMAS J. SCHOENBAUM,

ADMIRALTY AND MARITIME LAW § 6-28, at 393 (4th ed. 2004) (citing Farrell v.

United States, 336 U.S. 511, 522-23, 69 S. Ct. 707, 93 L. Ed. 850 (1949)).

"'Maximum medical cure' is reached when the seaman recovers from the injury,

the condition permanently stabilizes or cannot be improved further." McMillan v.

Tug Jane A. Bouchard, 885 F. Supp. 452,459 (E.D.N.Y. 1995).

       Maintenance and cure is an "ancient doctrine." Farrell, 336 U.S. at 520-21;

see also SCHOENBAUM, supra, § 6-28, at 376 ("This duty first appears in the

medieval sea codes and is undoubtedly of earlier origin."). A seaman's right to

       1
      Maintenance and cure cases alternatively refer to the concept of "maximum cure" as
"maximum medical recovery" or "maximum medical improvement."
                                            6
Dean v. Fishing Co. ofAlaska, No. 87407-7


maintenance and cure was first recognized in the United States by Justice Story.

See Harden v. Gordon, 11 F. Cas. 480 (C.C.D. Me. 1823) (No. 6,047); Reed v.

Canfield, 20 F. Cas. 426 (C.C.D. Mass. 1832) (No. 11,641). Justice Story

articulated the underlying policy of maintenance and cure as follows:

       Seamen are by the peculiarity of their lives liable to sudden sickness
       from change of climate, exposure to perils, and exhausting labour.
       They are generally poor and friendless, and acquire habits of gross
       indulgence, carelessness, and improvidence. If some provision be not
       made for them in sickness at the expense of the ship, they must often
       in foreign ports suffer the accumulated evils of disease, and poverty,
       and sometimes perish from the want of suitable nourishment. Their
       common earnings in many instances are wholly inadequate to provide
       for the expenses of sickness; and if liable to be so applied, the great
       motives for good behaviour might be ordinarily taken away by
       pledging their future as well as past wages for the redemption of the
       debt. . . On the other hand, if these expenses are a charge upon the
       ship, the interest of the owner will be immediately connected with that
       of the seamen. The master will watch over their health with vigilance
       and fidelity. He will take the best methods, as well to prevent
       diseases, as to ensure a speedy recovery from them. He will never be
       tempted to abandon the sick to their forlorn fate; but his duty,
       combining with the interest of his owner, will lead him to succor their
       distress, and shed a cheering kindness over the anxious hours of
       suffering and despondency. Beyond this, is the great public policy of
       preserving this important class of citizens for the commercial service
       and maritime defence of the nation.

Harden, 11 F. Cas. at 483.

       The United States Supreme Court relied on Justice Story's early opinions

when it definitively established a seaman's right to maintenance and cure in The




                                            7
Dean v. Fishing Co. ofAlaska, No. 87407-7


Osceloa, 189 U.S. 158, 175, 23 S. Ct. 483, 47 L. Ed. 760 (1903). 2 In Taylor, the

Court again referenced the "classic passage" written by Justice Story-quoted

above-to lay out three primary justifications for maintenance and cure: (1) "the

protection of seamen," (2) "the inducement of masters and owners to protect the

safety and health of seamen while in service," and (3) "the maintenance of a

merchant marine for the commercial service and maritime defense of the nation by

inducing [sea]men to accept employment in an arduous and perilous service." 303

U.S. at 528.

       In subsequent cases, the Court emphasized that a shipowner's duty to pay

maintenance and cure is '"broad,"' Vella, 421 U.S. at 4 (quoting Aguilar v.

Standard Oil Co. ofNJ., 318 U.S. 724, 730, 63 S. Ct. 930, 87 L. Ed. 1107 (1943)),

and should be liberally interpreted "'for the benefit and protection of seamen who

are [the admiralty courts'] wards,"' Vaughan v. Atkinson, 369 U.S. 527, 531-32, 82

S. Ct. 997, 8 L. Ed. 2d 88 (1962) (quoting Taylor, 303 U.S. at 529). "[T]he

shipowner's liability for maintenance and cure [is] among 'the most pervasive' of

all and [is] not to be defeated by restrictive distinctions nor 'narrowly confined."'

Vaughan, 369 U.S. at 532 (quoting Aguilar, 318 U.S. at 735). In order to ensure

that injured seamen were protected, the Vaughan Court instructed that "[w]hen

there are ambiguities or doubts [related to maintenance and cure], they are resolved


       2
        Superseded on other grounds by statute, Jones Act, 46 U.S.C. § 30104.
                                              8
Dean v. Fishing Co. ofAlaska, No. 87407-7


in favor of the seaman." Id. (citing Warren v. United States, 340 U.S. 523, 71 S.

Ct. 432, 95 L. Ed. 503 (1951)). The Court further explained that "the seaman's

right to maintenance and cure ... is so inclusive as to be relatively simple, and can

be understood and administered without technical considerations. It has few

exceptions or conditions to stir contentions, cause delays, and invite litigations."

Farrell, 336 U.S. at 516.

       A shipowner's duty to pay maintenance and cure is so broad that it arises

regardless of the shipowner's fault or negligence or the seaman's contributory

fault. Aguilar, 318 U.S. at 730-31. There are very few defenses a shipowner can

raise to avoid paying maintenance and cure. However, a shipowner does not have a

duty to pay maintenance and cure when a seaman is injured by his own willful

misconduct, Warren, 340 U.S. at 528, intentionally misrepresents facts about his

medical history when applying to work, McCorpen v. Cent. Gulf S.S. Corp., 396

F.2d 547, 548 (5th Cir. 1968), or refuses to accept medical care offered by the

shipowner, Oswaltv. Williamson Towing Co., 488 F.2d 51,54 (5th Cir. 1974).

D.     Pretrial procedure regarding maintenance and cure

       We now turn to the issue presented in this case. That is, how should a trial

court treat a seaman's pretrial motion to reinstate maintenance and cure after the

shipowner-who initially paid maintenance and cure-cuts off payments? Dean

argues that the Vaughan principle requires trial courts to apply a standard more


                                            9
Dean v. Fishing Co. ofAlaska, No. 87407-7


favorable to the seaman than a summary judgment standard. FCA argues that

summary judgment is the only mechanism under which a seaman can seek

adjudication of his maintenance and cure rights prior to trial. We agree with Dean

and conclude that the trial court erred in applying a summary judgment standard to

Dean's motion to reinstate maintenance and cure.

       We begin our analysis by noting that a shipowner's duty to pay maintenance

and cure is "virtually automatic." Baucom v. Sisco Stevedoring, LLC, 506 F. Supp.

2d 1064, 1073 (S.D. Ala. 2007). A shipowner must pay maintenance and cure to

seamen who prove, by a preponderance of the evidence, (1) they were employed as

seamen, (2) their injuries or illnesses occurred, manifested, or were aggravated

while in the ship's service, (3) the wages to which they are entitled, and (4)

expenditures for medicines, medical treatment, board, and lodging. Tuyen Thanh

Mai v. Am. Seafoods, 160 Wn. App. 528, 538-39, 249 P.3d 1030 (2011) (citing

Johnson v. Cenac Towing Inc., 468 F. Supp. 2d 815, 832 (E.D. La. 2006), vacated

on other grounds, 544 F.3d 296 (5th Cir. 2008)). The seaman's burden is

'"relatively light."' West v. Midland Enters., Inc., 227 F.3d 613, 616 (6th Cir.

2000) (quoting Freeman v. Thunder Bay Transp. Co., 735 F. Supp. 680, 681 (M.D.

La. 1990)). After a seaman has proved his initial entitlement to maintenance and

cure, the burden shifts to the shipowner to prove that maximum cure has been

reached. Tuyen Thanh Mai, 160 Wn. App. at 539; see also SCHOENBAUM, supra, §


                                            10
Dean v. Fishing Co. ofAlaska, No. 87407-7


6-33, at 394 (The shipowner "bears a heavy burden in deciding when to terminate

maintenance and cure.").

       We further note that if the shipowner unilaterally decides to stop paying

maintenance and cure to a seaman based on its determination that the seaman has

reached maximum cure, the seaman may reassert his rights by bringing a motion to

reinstate maintenance and cure. In such an instance, "it becomes the [shipowner's]

obligation to reinstate such payments." McMillan, 885 F. Supp. at 468. "If the

[shipowner] refuses to reinstate maintenance and cure, it bears the burden of

establishing that it had a legitimate reason for so refusing." Id. The shipowner can

meet this burden by providing "unequivocal" 3 evidence that the seaman has

reached maximum cure. Johnson v. Marlin Drilling Co., 893 F .2d 77, 79 (5th Cir.

1990) (citing Tullos v. Res. Drilling, Inc., 750 F.2d 380, 388 (5th Cir. 1985)).

Alternatively, the shipowner may move for an expedited trial under CR 42(b ). 4 In




       3
         A shipowner will likely not be able to show unequivocal evidence of maximum cure if
there are conflicting medical opinions. Tullos v. Res. Drilling, Inc., 750 F.2d 380, 388 (5th Cir.
1990); see also Lee v. Metson Marine Servs., Inc., Civ. No. 11-00169 ACK-BMK, 2012 WL
5381803, at *3 (D. Haw. Oct. 31, 2012) (unpublished) (denying shipowner's motion to terminate
maintenance and cure because the conflicting medical affidavits provided by the parties lacked
'"an unequivocal endorsement that [Plaintiff] attained maximum cure"' (quoting Sefcik v. Ocean
Pride Alaska, Inc., 844 F. Supp. 1372, 1373 (D. Alaska 1993))), adopted by district court sub
nom. Lee v. United States, Civ. No. 11-00169 ACK-BMK, 2013 WL 321570 (D. Haw. Jan. 28,
2013) (unpublished).
        4
          See, e.g., Bloom v. Weeks Marine, Inc., 225 F. Supp. 2d 1334, 1336 (M.D. Fla. 2002)
(suggesting that an expedited trial under Fed. R. Civ. P. 42(b) would be an appropriate procedure
to apply to a seaman's motion for maintenance and cure when there are disputed factual issues);
Royal Caribbean Cruises, Ltd. v. Rigby, 96 So. 3d 1146, 1148 (Fla. App. Dist. 2012) (after initial
                                               11
Dean v. Fishing Co. ofAlaska, No. 87407-7


an expedited trial, the shipowner would bear the same burden as it would at trial,

i.e., the shipowner would have to prove by a preponderance of the evidence that

the seaman had reached maximum cure.

       FCA argues that the trial court properly applied a summary judgment

standard to Dean's motion. We disagree. Summary disposition of maintenance and

cure claims is generally not appropriate. 2 ROBERT FORCE & MARTIN J. NORRIS,

THE LAW OF SEAMAN § 26:43, at 26-101(5th ed. 2003). The extent of a seaman's

injuries and whether a seaman has reached maximum cure are factual questions,

not legal questions. See SCHOENBAUM, supra,§ 6-33, at 393.

       Despite the general rule that a seaman's maintenance and cure claim should

not be disposed of on summary judgment, numerous federal district courts have

used summary judgment to determine a seaman's initial entitlement to

maintenance and cure. 5 For example, if a shipowner refuses to pay maintenance

and cure to an injured seaman from the outset, the seaman may sue and bring a

determination establishing seaman's entitlement to maintenance and cure, shipowner has burden
to bring an evidentiary hearing to demonstrate the propriety of terminating or reducing
payments).
        5
         See, e.g., Chaney v. Omega Protein, Inc., No. 09-7235, 2010 WL 1552449 (E.D. La.
Apr. 15, 2010) (unpublished); Davis v. Icicle Seafoods, Inc., No. 07-1565BHS, 2008 WL 418008
(W.D. Wash. Feb. 13, 2008) (unpublished); Hale v. Excel! Marine Corp., No. 5:07-CV-102-R,
2008 WL 4443098 (W.D. Ky. Sept. 26, 2008) (unpublished); Loflin v. Kirby Inland Marine, LP,
568 F. Supp. 2d 754 (E.D. Tex. 2007); Buenbrazo v. Ocean Alaska, LLC, No. C06-1347C, 2007
WL 7724765 (W.D. Wash. Feb. 28, 2007) (unpublished); Mabrey v. Wizard Fisheries, Inc., No.
C05-1499L, 2007 WL 1556529 (W.D. Wash. May 24, 2007) (unpublished); McNeil v. Jantran,
Inc., 258 F. Supp. 2d 926 (W.D. Ark. 2003); Freeman, 735 F. Supp. 680; Lancaster Towing, Inc.
v. Davis, 681 F. Supp. 387 (N.D. Miss. 1988); George v. Hillman Transp. Co., 340 F. Supp. 296
(W.D. Pa. 1972); Hudspeth v. Atl. & Gulf Stevedores, Inc., 266 F. Supp. 937 (E.D. La. 1967);
Claudio v. Sinclair Ref Co., 126 F. Supp. 154 (E.D.N.Y. 1954).
                                             12
Dean v. Fishing Co. ofAlaska, No. 87407-7


motion for summary judgment requesting the court find, as a matter of law, that the

seaman is entitled to maintenance and cure. 6 Additionally, the shipowner may

move for summary judgment on the grounds that the seaman failed to meet his

initial burden to prove he was employed as a seaman, 7 he was injured in the service

of the ship, 8 and he is incurring expenses for medical treatment, board, and

lodging. 9 The shipowner may also ask the court to find, as a matter of law, that it

does not have a duty to pay maintenance and cure because the shipowner has a

valid defense. 10 A seaman's initial entitlement to maintenance and cure presents

legal questions that can properly be resolved on summary judgment.


       6
          See, e.g., Chaney, 2010 WL 1552449, at *2 (denying seaman's summary judgment
motion for maintenance and cure); Hale, 2008 WL 4443098, at *2 (granting seaman's summary
judgment motion for maintenance and cure); Lancaster Towing, 681 F. Supp. at 389 (denying
seaman's summary judgment motion for maintenance and cure); see also FORCE & NORRIS,
supra,§ 26:55, at 26-131 ("The only recourse which the seaman [has] when [the shipowner fails
to pay maintenance and cure] is by way of a lawsuit for maintenance and cure.").
         7
          See, e.g., Buenbrazo, 2007 WL 7724765, at *1 (denying plaintiffs motion to compel
maintenance and cure when there was a factual dispute about whether plaintiff was a seaman or
longshoreman).
         8
          See, e.g., Chaney, 2010 WL 1552449, at *1 (denying seaman's motion for summary
judgment because the seaman did not provide sufficient evidence that he was injured while in the
service of the vessel); Mabrey, 2007 WL 1556529, at *2 (denying seaman's motion to compel
cure when there was conflicting evidence whether the seaman was injured while in the service of
the vessel).
         9
           See, e.g., Freeman, 735 F. Supp. at 682 (denying seaman's motion for summary
judgment on maintenance and cure issue because, even though seaman would have been entitled
 to maintenance and cure as a matter of law, the seaman failed to provide sufficient evidence of
 expenses incurred as a result of her injuries).
         10
            See, e.g., Davis, 2008 WL 418008, at *3 (denying plaintiffs motion for maintenance
 and cure where the parties disputed whether seaman forfeited his right to maintenance and cure);
 Loftin, 568 F. Supp. 2d at 763-64 (denying seaman's motion to compel maintenance and cure
 where shipowner argued that seaman willfully concealed a preexisting medical condition);
 Lancaster Towing, 681 F. Supp. at 389 (denying seaman's motion for maintenance and cure
 because the court found that the seaman intentionally misrepresented a back condition); George,
                                               13
Dean v. Fishing Co. ofAlaska, No. 87407-7


       FCA's and the Court of Appeals' reliance on Buenbrazo v. Ocean Alaska,

LLC, No. C06-1347C, 2007 WL 7724765 (W.D. Wash. Feb. 28, 2007)

(unpublished) and Mabrey v. Wizard Fisheries, Inc., No. C05-1499L, 2007 WL

1556529 (W.D. Wash. May 24, 2007) (unpublished) is misplaced here because this

case involves reinstatement of maintenance and cure after termination, not initial

entitlement. In those cases, the federal district court applied a summary judgment

standard to the seaman's motion to compel maintenance and/or cure because, in

those cases, the shipowners contested the seamen's initial entitlement to

maintenance and cure. Buenbrazo, 2007 WL 7724765, at *2; Mabrey, 2007 WL

1556529, at *2. In Buenbrazo, the shipowner challenged the plaintiffs status as a

seaman; in Mabrey, the shipowner challenged whether the seaman was injured in

the service of the vessel.

       As outlined above, we agree that a court may apply the summary judgment

standard to determine a seaman's initial entitlement to maintenance and cure. But it

does not necessarily follow that the summary judgment standard must be applied to

a seaman's motion to reinstate maintenance and cure. In fact, two federal district

court cases that have ruled specifically on a seaman's motion to reinstate

maintenance and cure (as opposed to a motion to compel initial payment of



340 F. Supp. at 303 (denying shipowner's motion for summary judgment to defeat seaman's
claim for maintenance and cure where the shipowner argued inter alia that statute of limitations
or laches barred seaman's claim).
                                              14
Dean v. Fishing Co. ofAlaska, No. 87407-7


maintenance and cure) conclude that the summary judgment standard should not be

applied. See Gouma v. Trident Seafoods, Inc., No. C07-1309, 2008 WL 2020442

(W.D. Wash. Jan. 11, 2008) (unpublished); Sefcik v. Ocean Pride Alaska, Inc., 844

F. Supp. 1372 (D. Alaska 1993).

       In Sefcik, a seaman brought a motion to reinstate maintenance and cure after

the shipowner terminated payment based upon its finding that the seaman had

reached maximum cure. 844 F. Supp. at 1373. The shipowner urged the district

court to apply a summary judgment standard to the seaman's motion, but the

district court refused. Id. The district court stated, "An injured seaman seeking

reinstatement of maintenance and cure payments which were terminated by his

employer cannot be considered in the same procedural posture as a party seeking

summary judgment." Id. The district court held that the decision to terminate

maintenance and cure must be unequivocal, and given the conflicting medical

opinions provided by the parties, the shipowner did not meet this standard. Id. The

district court further reasoned that all ambiguities relating to maintenance and cure

must be resolved in favor of the seaman and noted that the seaman "clearly did not

file a motion for summary judgment." Id. at 1374. On these grounds, the district

court granted the seaman's motion to reinstate maintenance and cure.

       In Gouma, a seaman filed a motion to compel cure asking the court to order

the shipowner to pay for a discogram/CT after the shipowner indicated that it


                                            15
Dean v. Fishing Co. ofAlaska, No. 87407-7


would not pay for the procedure. 2008 WL 2020442, at * 1. The shipowner refused

to pay for the procedure because a physician conducting an independent medical

examination had determined that the seaman had reached maximum cure and that

the discogram/CT was unnecessary. Id. Like in Sefcik, the shipowner urged the

district court to apply a summary judgment standard to the seaman's motion, but

the district court refused. Gouma, 2008 WL 2020442, at *2. In granting the

seaman's motion, Chief Judge Pechman reasoned,

       Plaintiff is entitled to a presumptive continuance of maintenance and
       cure payments. Even if a summary judgment standard of review were
       to be applied in this context, disputed questions of material fact (e.g.,
       the differing opinions of Plaintiffs and Defendants' physicians)
       would simply mean that Plaintiff would be entitled to continue to
       receive maintenance and cure until the matter was ultimately resolved
       at trial. The procedural model proposed by Defendants would mean
       that 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. This Court is not
       prepared to depart from the [Vaughan] standard of resolving all
       doubts concerning maintenance and cure in the seaman's favor to that
       extent. Defendants have cited no opinion from the Ninth Circuit or the
       Supreme Court indicating that this historic doctrine has fallen to that
       level of disfavor.

             Similarly, Defendants may not unilaterally decide, based on the
       opinion of their own physician, that a seaman has reached maximum
       medical cure. At the very least, it violates the summary judgment
       standard which they themselves are championing-in the face of
       genuine disputes of material fact regarding the extent of Plaintiffs
       cure, Defendants are not entitled to summarily (and unilaterally)
       determine the question in their own favor. More significantly,
       Defendants' action appropriates to themselves the adjudicatory
       function of this Court-the issue of maximum cure is one of the


                                            16
Dean v. Fishing Co. ofAlaska, No. 87407-7


       ultimate issues before the Court in any maritime injury litigation, and
       no action may be taken on it without an order of the court.

ld. at *2-3.

       Dean is in precisely the same position as the seamen in Sefcik and Gouma. In

both Sefcik and Gouma, the shipowners had cutoff the seamen's maintenance and

cure based on their findings that the seamen had reached maximum cure. Like the

seamen in Sefcik and Gouma, Dean was forced to file a motion reasserting his right

to maintenance and cure. We agree with Chief Judge Pechman that allowing a

shipowner to stop paying maintenance and cure simply because the shipowner

obtained a single medical opinion pronouncing the seaman's maximum cure is

contrary to the Vaughan principle. By applying a summary judgment standard to

Dean's motion, the trial court allowed FCA to terminate its duty to pay

maintenance and cure simply because FCA had obtained a medical opinion from

Dr. Williamson-Kirkland. The trial court's holding placed the adjudicatory power

of the court in the hands of FCA and shifted the burden of proving maximum cure

from FCA to Dean (to prove that he had not reached maximum cure). The trial

court erred in applying a summary judgment standard to Dean's motion.

       We hold that if a shipowner stops paying maintenance and cure to a seaman

because it has determined that the seaman has reached maximum cure, a trial court

errs by applying a summary judgment standard to a seaman's motion to reinstate

maintenance and cure. Instead, after a seaman makes such a motion, the trial court
                                            17
Dean v. Fishing Co. ofAlaska, No. 87407-7


should order the shipowner to reinstate such payments unless the shipowner can

provide unequivocal evidence that the seaman has reached maximum cure.

Alternatively, if the shipowner wishes to terminate paying maintenance and cure,

the shipowner could move for an expedited trial under CR 42(b ). At an expedited

trial, the shipowner would have the burden to prove, by a preponderance of the

evidence, that the seaman had reached maximum cure.

                                    CONCLUSION

       We reverse the Court of Appeals and hold that the trial court erred in

applying a summary judgment standard to Dean's motion to reinstate maintenance

and cure. Dean asked this court to provide guidance on whether surveillance

conducted by a shipowner is protected from discovery. But because the parties

have agreed to forgo a trial de novo in this matter, this discovery issue is moot and

we will not address it.




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Dean v. Fishing Co. ofAlaska, No. 87407-7




WE CONCUR:




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