                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                         September 26, 2017
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    JEREMY GIBSON,                                                   No. 49340-3-II

                          Appellant.

           v.

    AMERICAN CONSTRUCTION COMPANY,                              PUBLISHED OPINION
    INC., a Washington corporation,

                          Respondent.


          SUTTON, J. — This case presents an issue of first impression in Washington—whether an

injured maritime worker who accepts voluntary benefits and settles his claim under the Longshore

and Harbor Workers’ Compensation Act (LHWCA),1 when there is no adjudication of his status

as a non-seaman under the LHWCA, is barred from pursuing claims against the vessel owner for

personal injuries under the Jones Act.2 We hold that, because Jeremy Gibson’s maritime worker

status as a non-seaman was never adjudicated under the LHWCA and the compensation order did

not expressly resolve this issue under the LHWCA, under Gizoni,3 Gibson’s Jones Act claims are

not barred, and election of remedies, equitable estoppel, and collateral estoppel do not apply. Thus,




1
 The LHWCA provides federal workers’ compensation benefits to eligible land-based maritime
workers. 33 U.S.C. §§ 901-950.
2
 The Jones Act provides eligible sea-based maritime workers a recovery for damages based on an
employer’s negligence. 46 U.S.C. § 30104.
3
    Sw. Marine, Inc. v. Gizoni, 502 U.S. 81, 112 S. Ct. 486, 116 L. Ed. 2d 405 (1991).
No. 49340-3-II


we reverse the superior court’s summary judgment dismissal order of Gibson’s Jones Act claims,

and remand for further proceedings consistent with this opinion.

                                                FACTS

          In August 2013, American Construction Company, Inc. (American), employed Gibson as

a mechanic in its marine construction department. Gibson fell through a hatch while working on

a crane barge moored at American’s dock. He was treated for head, back, neck, arm, and leg

injuries.4 Gibson continued to receive medical treatment over the next nine months and received

medical payments from American.

          In May 2014, Gibson quit working and filed a claim with the U.S. Department of Labor

(Department) for disability and medical benefits under the LHWCA. American paid Gibson

disability and medical benefits under the LHWCA from May 2014 to December 2015.

          In December 2015, the parties agreed to settle the LHWCA claim, signed a settlement

agreement, and submitted an application to the Department’s district director for approval under

33 U.S.C. § 908(i) of the LHWCA.5 The parties agreed that Gibson contended that he suffered a


4
    Gibson also alleges more serious injuries, including degenerative softening of the spinal cord.
5
    33 U.S.C. § 908(i) provides, in relevant part:

          (1) Whenever the parties to any claim for compensation under this chapter,
          including survivors benefits, agree to a settlement, the deputy commissioner or
          administrative law judge shall approve the settlement within thirty days unless it is
          found to be inadequate or procured by duress. Such settlement may include future
          medical benefits if the parties so agree. No liability of any employer, carrier, or
          both for medical, disability, or death benefits shall be discharged unless the
          application for settlement is approved by the deputy commissioner or
          administrative law judge. If the parties to the settlement are represented by counsel,
          then agreements shall be deemed approved unless specifically disapproved within
          thirty days after submission for approval.


                                                     2
No. 49340-3-II


work related injury, the claim was subject to the LHWCA, that a speedy resolution was in his best

interest, and that by paying the agreed amount, American discharged its liability for the LHWCA

claim.

         The Department’s district director approved the agreed settlement and signed a final

compensation order in December 2015, closing Gibson’s LHWCA claim. The compensation order

stated in whole:

                 Pursuant to agreement and stipulation by and between the interested parties,
         and such further investigation in the above-entitled claim having been made as is
         considered necessary, and no hearing having been applied for by any party in
         interest or considered necessary by the District Director, the District Director makes
         the following:

                                        FINDINGS OF FACT

         1. That the claimant alleges accidental injury arising out of and in the course of
            employment with the employer on or about 08/08/2013.
         2. That liability of the employer for compensation under the above cited Act was
            insured by the American Longshore Mutual Assn. Ltd.
         3. The parties have agreed to settle the claim as outlined in the attached settlement
            agreement.
         4. The District Director, pursuant to § 8(i) of the Longshore and Harbor Workers’
            Compensation Act and 20 CFR 702.243,6 finds the settlement adequate and not
            procured by duress.

                                               ORDER

         Pursuant to Section 8(i) of the Longshore and Harbor Workers’ Compensation Act,
         the District Director having reviewed the attached agreement and stipulation by and
         between the interested parties hereby approves the agreed settlement. This

         ....
         (3) A settlement approved under this section shall discharge the liability of the
         employer or carrier, or both. Settlements may be agreed upon at any stage of the
         proceeding including after entry of a final compensation order.
6
  20 C.F.R. 702.243 details the procedures for an adjudicator to approve an agreed settlement under
the LHWCA.


                                                   3
No. 49340-3-II


       approval effects a final disposition of the claim, discharging the liability of the
       employer and insurance carrier in accordance with the terms of the settlement. The
       employer and insurance carrier are hereby ordered to pay all amounts due.

Clerk’s Papers at 41.

       In March 2016, Gibson filed a Jones Act complaint against American for negligence,

unseaworthiness, and vessel owner negligence for his 2013 injuries. In his complaint, he alleged

that he was both a sea-based and land-based maritime worker. American filed a CR 12(b)(6)

motion to dismiss based on failure to state a claim upon which relief can be granted and submitted

declarations. American argued that the LHWCA compensation order precluded Gibson from

bringing a Jones Act claim and asserted election of remedies, equitable estoppel, and collateral

estoppel. Gibson responded that the compensation order did not resolve his maritime worker status

because his status was never adjudicated in a formal hearing under the LHWCA. The superior

court denied the motion to dismiss.

       American filed a motion for reconsideration, asserting the same arguments. The superior

court granted American’s motion for reconsideration and dismissed Gibson’s Jones Act claims

with prejudice. Gibson appeals.

                                            ANALYSIS

       Gibson argues that the trial court erred in dismissing his Jones Act claims because (1) under

Gizoni, the issue of his maritime worker status, non-seaman or seaman, was never adjudicated and

the compensation order did not expressly resolve this issue under the LHWCA, (2) any LHWCA

recovery he has received will be credited to his employer if he is successful in his Jones Act claims,

and (3) election of remedies, equitable estoppel, and collateral estoppel do not apply to bar his

Jones Act claims. We hold that, because Jeremy Gibson’s maritime worker status as a non-seaman



                                                  4
No. 49340-3-II


was never adjudicated under the LHWCA and the compensation order did not expressly resolve

this issue under the LHWCA, under Gizoni, Gibson’s Jones Act claims are not barred, and election

of remedies, equitable estoppel, and collateral estoppel do not apply.

                                        I. LEGAL PRINCIPLES

          Dismissals under CR 12(b)(6) are proper “only where there is not only an absence of facts

set out in the complaint to support a claim of relief, but there is no hypothetical set of facts that

could conceivably be raised by the complaint to support a legally sufficient claim.” Worthington

v. Westnet, 182 Wn.2d 500, 505, 341 P.2d 995 (2015). If a party brings a motion to dismiss under

CR 12(b)(6), but “matters outside the pleading are presented to and not excluded by the court, the

motion shall be treated as one for summary judgment and disposed of as provided in [CR] 56.”

CR 12(b)(7). Declarations submitted in a CR 12(b)(6) motion are “matters outside the pleadings”

that convert the CR 12(b)(6) motion into a summary judgment under CR56(c). Didlake v. State,

186 Wn. App. 417, 422, 345 P.3d 43, review denied, 184 Wn.2d 1009 (2015).

          Here, the superior court considered facts beyond those stated in the complaint, including

American’s declarations. Therefore, we treat the superior court’s dismissal order as a decision on

a motion for summary judgment. CR 12(b)(7).

          Summary judgment is appropriate if there are no genuine issues of material fact and the

moving party is entitled to judgment as a matter of law. CR 56(c). “If reasonable minds can reach

only one conclusion on an issue of fact, that issue may be determined on summary

judgment.” Sutton v. Tacoma Sch. Dist. No. 10, 180 Wn. App. 859, 865, 324 P.3d 763 (2014).

We review a superior court’s decision on summary judgment de novo. Didlake, 186 Wn. App.

at 422.



                                                  5
No. 49340-3-II


             II. MARITIME WORKERS’ COMPENSATION—THE LHWCA AND THE JONES ACT

       “[M]aritime actions brought in Washington courts ‘are governed by federal maritime

law.’” Tabingo v. Am. Triumph, LLC, 188 Wn.2d 41, 46, 391 P.3d 434 (2017) (quoting Clausen

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

A. THE LHWCA

       The LHWCA provides a comprehensive scheme to pay compensation to an eligible land-

based maritime worker for disability or death. See 33 U.S.C. §§ 902-03. The LHWCA excludes

“a master or member of a crew of any vessel” from its maritime workers’ compensation provisions.

33 U.S.C. § 902(3)(G). Masters and crewmembers excluded under the LHWCA are seamen

entitled to sue the employer for damages under the Jones Act. Harbor Tug & Barge Co. v. Papai,

520 U.S. 548, 553, 117 S. Ct. 1535, 137 L. Ed. 2d 800 (1997).

       Under the LHWCA, payments are made to the qualified maritime worker regardless of

employer fault. 33 U.S.C. § 904(b). In exchange for scheduled benefits for the worker, the

employer is immune from a lawsuit for the injury. 33 U.S.C. § 905(a). Once a LHWCA claim is

filed, it is presumed that such a claim falls within the act. 33 U.S.C. § 920(a). The LHWCA pays

an injured maritime worker a schedule of benefits for time loss while they are temporarily disabled.

33 U.S.C. § 908(b). The LHWCA also allows an injured worker to recover for partial, total, and

permanent and temporary disability, or death. 33 U.S.C. §§ 908-09.




                                                 6
No. 49340-3-II


          When Congress excluded seamen from the LHWCA, they also amended the LHWCA to

add a credit provision for the liable employer to offset any Jones Act damages award by any

liability imposed on the employer under the LHWCA. 33 U.S.C. § 903(e).7

          The LHWCA requires employers to pay benefits voluntarily, without an award. 33 U.S.C.

§§ 904, 914(a). Where LHWCA benefits are contested, the Department may investigate and hold

hearings and there may be a trial before an administrative law judge (ALJ) whose order is subject

to review by a review board. 33 U.S.C. §§ 908, 914(h). The LHWCA is remedial in nature and

is to be liberally construed in favor of the injured worker. Voris v. Eikel, 346 U.S. 328, 333, 74 S.

Ct. 88, 98 L. Ed. 2d 5 (1953).

B. THE JONES ACT

          Seamen injured on the job generally do not qualify for federal or state workers’

compensation benefits. Clausen, 174 Wn.2d at 76. Congress enacted the Jones Act to afford

injured seamen with relief by permitting them to pursue a cause of action against a vessel owner

for negligence. Chandris, Inc. v. Latsis, 515 U.S. 347, 354, 115 S. Ct. 2172, 132 L. Ed. 2d 314

(1995).




7
    33 U.S.C. § 903(e) provides:
          Notwithstanding any other provision of law, any amounts paid to an employee for the same
          injury, disability, or death for which benefits are claimed under this chapter pursuant to
          any other workers’ compensation law or [the Jones Act] shall be credited against any
          liability imposed by this chapter.


                                                  7
No. 49340-3-II


       Instead of federal or state workers’ compensation, a seaman has a right to maintenance and

cure after a workplace injury—room, board, and medical expenses during recovery. Dean v.

Fishing Co. of Alaska, Inc., 177 Wn.2d 399, 405-06, 300 P.3d 815 (2013). Injured seamen may

also seek relief against a vessel owner alleging the vessel’s unseaworthiness. Chandris, 515 U.S.

at 354. Like the LHWCA, the Jones Act is to be liberally construed in favor of the injured worker.

Urie v. Thompson, 337 U.S. 163, 180, 69 S. Ct. 1018, 93 L. Ed. 2d 1282 (1949).

C. RELATIONSHIP BETWEEN THE LHWCA AND THE JONES ACT

       The United States Supreme Court has described these two acts as

       complementary regimes that work in tandem: The Jones Act provides tort remedies
       to sea-based maritime workers, while the LHWCA provides workers’
       compensation to land-based maritime employees.

Stewart v. Dutra Const. Co., 543 U.S. 481, 488, 125 S. Ct. 1118, 160 L. Ed. 2d 932 (2005). But

the remedies available to an injured seaman under the Jones Act are generally more extensive than

those afforded to an injured maritime worker under the LHWCA. E.g., Simms v. Valley Line Co.,

709 F.2d 409, 411-12 (5th Cir. 1983).

       A maritime worker is either a non-seaman covered by the LHWCA or a seaman covered

by the Jones Act. Harbor Tug, 520 U.S. at 553 (quoting Chandris, 515 U.S. at 355-58). The

determination of whether a maritime worker is a seaman is a mixed question of law and fact, rather

than purely factual. Sw. Marine, Inc. v. Gizoni, 502 U.S. 81, 87–88, 112 S. Ct. 486, 116 L. Ed. 2d

405 (1991). “Land-based maritime workers do not become seamen because they happen to be

working on board a vessel when they are injured, and seamen do not lose Jones Act protection

when the course of their service to a vessel takes them ashore.” Chandris, 515 U.S. at 361.

Although the acts are complementary and are to be liberally construed, the acts overlap in practice;



                                                 8
No. 49340-3-II


injured maritime workers, whose work is both sea-based and land-based, face a “‘zone of

uncertainty’” regarding the relationship between the acts. Simms, 709 F.2d at 411 (quoting

McDermott, Inc. v. Boudreaux, 679 F.2d 452, 459 (5th Cir. 1982).

     III. PRECLUSIVE EFFECT OF THE ORDER APPROVING AN AGREED LHWCA SETTLEMENT

       Here, the issue is whether Gibson’s Jones Act claims are barred by a compensation order

approving an agreed settlement of his LHWCA claim. Gibson argues that, under Gizoni, there

must be formal adjudication of his maritime worker status as a non-seaman under the LHWCA,

and because the compensation order did not resolve this issue under the LHWCA, his Jones Act

claims are not barred. We agree.

       The Supreme Court in Gizoni addressed whether an injured maritime worker’s receipt of

benefits under the LHWCA bars Jones Act claims. Gizoni, 502 U.S. at 91-92. The Court held:

       It is by now “universally accepted” that an employee who receives voluntary
       payments under the LHWCA without a formal award is not barred from
       subsequently seeking relief under the Jones Act. This is so, quite obviously,
       because the question of coverage has never actually been litigated. Moreover, the
       LHWCA clearly does not comprehend such a preclusive effect, as it specifically
       provides that any amounts paid to an employee for the same injury, disability, or
       death pursuant to the Jones Act shall be credited against any liability imposed by
       the LHWCA.

Gizoni, 502 U.S. at 91-92 (emphasis added) (citations omitted).

       The Supreme Court recognized that some maritime workers may be Jones Act seamen who

are injured while also performing a job specifically enumerated under the LHWCA. Gizoni, 502

U.S. at 89. The Court stated:




                                               9
No. 49340-3-II


       While in some cases a ship repairman may lack the requisite connection to a vessel
       in navigation to qualify for seaman status . . . not all repairmen lack the requisite
       connection as a matter of law. This is so because it is not the employee’s particular
       job that is determinative, but the employee’s connection to a vessel. By its terms
       the LHWCA preserves the Jones Act remedy for vessel crewmen, even if they are
       employed by a shipyard.

Gizoni, 502 U.S. at 89 (citations, footnote, and internal quotation marks omitted).

       This point was reinforced by the Court’s citation to Simms, which states that a “formal

adjudication of seaman status” is a necessary prerequisite for any preclusive effect to derive from

a claimant’s receipt of LHWCA benefits. Gizoni, 502 U.S. at 91 (citing Simms, 709 F.2d at 412,

nn.3, 5). The Simms court held that in order for res judicata or collateral estoppel to apply to Jones

Act claims, there must be a “formal Board finding of non-seaman status.” Simms, 709 F.2d at 412.

The Supreme Court subsequently held that an injured maritime worker receives an “award” by

virtue of his entitlement to informal benefits under the LHWCA without a formal administrative

proceeding or a compensation order. Roberts v. Sea-Land Services, Inc., 566 U.S. 93, 100, 132 S.

Ct. 1350, 182 L. Ed. 2d 341 (2012).

       Following Gizoni, the Ninth Circuit, in Figueroa v. Campbell Industries, held that a

LHWCA settlement order which did not resolve the maritime worker’s status under the LHWCA

did not preclude Jones Act claims. Figueroa v. Campbell Indus., 45 F.3d 311, 315 (9th Cir. 1995).

The court held that

       just as in Gizoni, the jurisdictional issue was not previously litigated, and no finding
       in that regard was made at the administrative level. This is evidenced by the
       Compensation Order issued by the [Department] which makes findings of fact,
       none of them regarding the jurisdictional issue.

Figueroa, 45 F.3d at 315.




                                                 10
No. 49340-3-II


       The Figueroa court noted that Gizoni emphasized that the justification for its decision was

not that a formal award had not been issued, but rather that double recovery under the two statutes

is precluded. Figueroa, 45 F.3d at 315. Thus, the Figueroa court reasoned that the receipt of a

LHWCA award, which is statutorily limited to compensation for medical expenses and lost wages,

would not preclude Jones Act claims for pain and suffering. Figueroa, 45 F.3d at 316.

       Gizoni is controlling, and we adopt the reasoning of the Ninth Circuit in Figueroa.8 Like

the maritime worker in Gizoni and Figueroa, Gibson’s maritime worker status as a non-seaman

was not litigated or adjudicated under the LHWCA in a formal hearing. There was no specific

finding or ruling on jurisdiction under the LHWCA in the compensation order. The compensation

order approving the parties agreed settlement is an informal order, not a formal award. Gibson

received an “award” under the LHWCA. But Gibson did not have a litigated decision as to his

maritime worker status, non-seaman or seaman status, under the LHWCA as Gizoni contemplated.

Roberts, 566 U.S. at 93. And there is no potential for double recovery by Gibson because any

LHWCA payments are credited to American if Gibson prevails under the Jones Act. 33 U.S.C.

§ 903(e).




8
  We acknowledge that after Gizoni, the federal circuits have split on the issue of whether a
maritime worker who accepts a final compensation order under the LHWCA is barred from
pursing a claim for damages under the Jones Act. In contrast to the Ninth Circuit, the Fifth Circuit
in Sharp v. Johnson Bros. Corp. held that an injured maritime worker’s receipt of an approved
LHWCA settlement and a compensation order issued by an ALJ constituted a “formal award” that
barred a Jones Act claim. Sharp v. Johnson Bros. Corp., 973 F.2d 423, 426 (5th Cir. 1992).


                                                11
No. 49340-3-II


         Gibson alleged in his complaint that he was both a sea-based maritime worker and a land-

based maritime worker. Because we construe all facts in favor of the nonmoving party on

summary judgment, the superior court erred in granting the reconsideration motion and dismissing

Gibson’s Jones Act claims with prejudice. We hold that because Gibson’s maritime worker status

as a non-seaman was never adjudicated under the LHWCA and the compensation order did not

expressly resolve that issue under the LHWCA, Gibson’s Jones Act claims are not precluded by

the LHWCA settlement.

                                     IV. ALTERNATE THEORIES

         Gibson argues that his receipt of LHWCA benefits does not bar his claims under the Jones

Act, and that election of remedies, equitable estoppel, and collateral estoppel do not apply. We

agree.

A. ELECTION OF REMEDIES/EQUITABLE ESTOPPEL

         The election of remedies doctrine “‘refers to situations where an individual pursues

remedies that are legally or factually inconsistent’ with each other.” 14 Penn Plaza LLC v. Pyett,

556 U.S. 247, 262, 129 S. Ct. 1456, 173 L. Ed. 2d 398 (2009) (quoting Alexander v. Gardner-

Denver Co., 415 U.S. 36, 49, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974)). Equitable estoppel bars a

claim when the evidence shows there was (1) an admission, statement or act inconsistent with a

claim later asserted; (2) reasonable reliance on that admission, statement, or act by the other party;

and (3) injury to the relying party if the court permits the first party to contradict or repudiate the

admission, statement or act. Heckler v. Cmty. Health Servs. of Crawford County, Inc., 467 U.S.

51, 59, 104 S. Ct. 2218, 81 L. Ed. 2d 42 (1984).




                                                  12
No. 49340-3-II


       Gizoni rejected the arguments that election of remedies or equitable estoppel apply when

an injured maritime worker receives benefits under the LHWCA and then pursues claims under

the Jones Act. Gizoni, 502 U.S. at 91-92. Gizoni held in part:

       Where full compensation credit removes the threat of double recovery, the critical element
       of detrimental reliance does not appear. Argument by amicus would force injured maritime
       workers to an election of remedies we do not believe Congress to have intended.

Gizoni, 502 U.S. at 91, n.5 (citations omitted). Thus, under Gizoni, election of remedies and

equitable estoppel do not apply to bar Gibson’s Jones Act claims.

B. COLLATERAL ESTOPPEL

       Collateral estoppel applies “‘[w]hen an issue of fact or law is actually litigated and

determined by a valid and final judgment, and the determination is essential to the judgment, the

determination is conclusive in a subsequent action between the parties, whether on the same or a

different claim.’” B & B Hardware, Inc. v. Hargis Indus., Inc., __ U.S. __, 135 S. Ct. 1293, 1303,

191 L. Ed. 2d 222 (2015) (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 27 (1980)).

       Here, the threshold question is whether the issue of Gibson’s maritime worker status was

actually litigated and necessarily and finally determined in the earlier proceeding. See B & B

Hardware, 135 S. Ct. at 1303. As discussed above, there was no formal adjudication of the facts

or administrative proceeding to determine the nature and duration of Gibson’s maritime worker

status as to whether he was primarily sea-based or land-based. The compensation order approving

the settlement of Gibson’s LHWCA claim did not contain any specific finding of fact or conclusion

of law that Gibson was a non-seaman under the LHWCA. Therefore, collateral estoppel does not

apply. And we hold that Gibson is not collaterally estopped from pursuing his Jones Act claims.




                                               13
No. 49340-3-II


                                      CONCLUSION

      We reverse and remand for proceedings consistent with this opinion.




                                                  SUTTON, J.
 We concur:



MAXA, A.C.J.




LEE, J.




                                             14
