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!N THE COUR`E' OF APPEALS OF THE STATE OF WASH|NGTON

ROYAE_ CARlBBEAN CRU|SES LTD.,
a Liberian Corporation,

NO. 76275»3»1

D|ViSlON ONE
Appefiant,

V.

)

)

)

)

)

l
SWEDiSH HEALTH SERVICES, a )
Washington Corporation d/b/a )
SWEDlSH NlEDiCAL CENTER; )
SEATTE_E RAD|OLOGESTS, a )
Professional Corporation; THE )
POLYCE_|N|C, a Protessionai )
Corporation; FREDERLCK A. iV|Al\El\E, )
lVl.D.; PEGGY D. HEADSTROM, M.D.; )
and K\’UNG Hl HAN, Ni.D., )
)

)

UNPUBL|SHED OPENION

Respondents. FiLED: October 22, 2018

 

ScHlNDLER, J. -- in 2009, Jacqueline Atmonte fiied a lawsuit against Royal
Caribbean Cruises Ltd. (RCCL). Almonte aileged RCCL provided inadequate medicai
care and asserted claims under federal maritime an for unseaworthiness negligence
under the Jones Act, 46 U.S.C. § 30104, and maintenance and cure. in 2014, RCCL
settled the lawsuit for $700,000. Almonte released ali claims against RCCE_ and
medical care providers in May 2015, RCCL filed an indemnity and contribution action
under federal maritime an and state law against Swedisn Health Services, the

Poiyclinic, Dr. Peggy Headstrom and Dr. Kyung Han, and Seattle Radiologists and Dr.

NO. 76275-3-|/2

Frederick Niann. We affirm summary judgment dismissal of the indemnity and
contribution iawsuit.
BACKGROUND AND PROCEDURAL i-iiSTORY

lVledica| Care

.iacqueline Alrnonte is a Dorninican Republic citizen in 2007, Almonte worked
as a crewmember aboard the Roya| Caribbean Cruises Ltd. (RCCL) cruise ship
Serenade of the Seas. ln Ju|y 2907, Airnonte saw the ship doctor for “severe abdominal
pain.” When the ship docked in Juneau, Alaska, the ship doctor referred Aimonte to
Vailey Medicai Care. On August 16, Vai|ey |Viedica| Care diagnosed Almonte with “an
acute peptic ulcer” and prescribed medication Ai‘ter Alrnonte returned to work aboard
the ship, her symptoms got worse. On Septernber i, a ship doctor examined Almonte
and found her “not fit for duty." RCCL case coordinator Tania Arroyo1 worked in the
crew medical department in N!iarni, Fiorida. Arroyo made arrangements for Airnonte to
leave the ship and go to the Sitka Cornmunity Hospital Emergency Department. The
hospitai admitted Almonte on Septeniber 3. Dr. Robert Hunter examined Aimonte and
ordered a CAT2 scan. According to Dr. Hunter, the CAT scan showed “Crohn's disease
with an inflammatory obstruction of the terminal ilium, fistu!as and free fiuid in the
pelvis.” Dr. Hunter treated Airnonte for Crohn’s disease and prescribed steroids. Dr.
Hunter discharged Aimonte on Septernber 9. in the discharge instiuctions, Dr. l-iunter

refers Aimorite to gastroenteroiogist Dr. Peggy Headstrorn at the Poiyciinic in Seattie

 

i Tania Arroyo subsequently changed her name to Tariia Rivera. For clarity, we refer to her as
Tania Arroyo throughout this opinion.

2 Computerized axial tomography.

NO. 76275-3-|/3

and directs Almonte to call the Poiyclinic on Septen'iber 10 to make an appointment
RCCL paid for Almonte to fiy to Seattle and stay in a hotel.

At the request of RCCL, on September 10, 2007, AXA Assistance USA taxed the
Sitka Community l-iospital discharge summary and a “ietter of Guarantee of Payment” to
the “Po|y Clinic --- Dr. Peggy Headstrorn.” The September 10 AXA “l_etter of
Confirmation of Benefits Nledical Services” confirmed coverage for A!monte and
reimbursement for reasonable charges as “approved by AXA Assistance USA.”

Your facility will be reimbursed reasonabie and customary charges as

determined by geographic location or by prearranged contractual

assignments for emergency treatment which is medically necessary and

approved by AXA Assistance USA. Coveraqe is subject to g|i terms.

conditions, limitations and exclusions of the patient’s policy.['°‘]

Dr. l-leadstrom examined Aimonte on Septernber 10. Dr. Headstrom notes:

The report l have from that {Sitka] hospitalization is not detailed

Apparentiy she did have a CAT scan that showed some ileal

abnormalities, and she was placed on prednisone and Asacol for the last

several days. i do not know the results of any other iaboratory testing.

Almonte was admitted to Swedish Nledical Center for diagnostic testing. Dr.
Headstrom ordered a “CAT scan with CT[“I enteropathy” and a coionoscopy. Dr.
Frederick i\!lann of Seattie Radiologists reviewed the CT scan and found it was
“[n]egative" for gastrointestinal disease On September 12, Polyclinic physician Dr.
Kyi,ing Han performed the colonoscopy. The results were “noimal.”

Swedish l\/ledical Center physician Dr. lVlari< Kohrnetschei discharged Almonte

on September ‘l3. `l`he discharge states the “CAT scan with CT enteropathy [ls]

essentially negative No evidence of that described frorn films done in Sitl<a, Aiaska.”

 

3 Emphasis in original
4 Computed tomography.

NO. 76275-3-|/4

The discharge diagnosis is “possible gastroparesis, still With some pending Workup.”
Dr. Kohmetscher prescribed medication and noted Almonte is “planning to emigrate
back to the Dorninican Republic." Dr. Kohmetscher suggests Almonte “follow up [with]
Dr. |-ieadstrom iVlonday to look at finalized biopsy results."

Almonte saw Dr. Headstrom on September 17 for a foilow-up appointment.
Almonte told Dr. Headstrom she was “abie to eat” and still had “sorne lower abdominal
discomfort but nothing severe." Dr. Headstrom wrote Almonte “a note saying she is
okay to go back to the ship.” Dr. i-ieadstrom also gave Aimonte “some of her records
from her recent hospitaiization to take with her back to the Dominican Repubiic.”

The first time Almonte spoke to RCCL case coordinator Arroyo was after Almonte
saw Dr. Headstrorn on Septerriber 17. Almonte toid Arroyo she had the “same
symptoms.” On September 18, Arroyo decided to send Almonte home

[C]rew wiil be sent home she still has pain and no clear diagnosis was

given apparentiy the CT[ ]scan and the coionoscopy came back negative

she stiil suffers from pain and is worried to return to the ship in this

condition so i wili send her home for a further investigations [sic].

On September 19, Arroyo requested the Polyclinic and Dr. Headstrom provide “ail
med[icai] report & letter saying [patient] is fit to go back to work.” The Polyclinic refused
to disclose patient information without Almonte’s consent

Almonte flew home to the Dominican Repubiic on September 20. On September
21, Aimonte was admitted to a clinic. The clinic performed surgery to drain an abscess

and remove her perforated appendix The attending physician diagnosed and treated

Almonte for Crohn’s disease

No. 76275-3-|/5

2009 Fiorida Lawsuit

On l\lovernber 16, 2009, Almonte filed a lawsuit against RCCL in l\)liami-Dade
County circuit court. Almonte alleged RCCL did not provide adequate medical care
Almonte alleged she did not receive adequate medical care from the ship's doctors or
the “shoreside doctors." Almonte alleged RCCL “wi||fully and callously delayed, failed
and refused to provide Plaintitt’s entire maintenance and cure” when it sent her home
without any type ot assistance Aimonte alleged the lack of “reasonably fit medical staft”
and facilities onboard made the ship unseaworthy. Almonte asserted federal maritime
claims for unseaworthiness negligence under the .iones Act, 46 U.S.C. § 30i0¢i, and
maintenance and cure

Almonte alleged she “kept returning” to the ship doctor “as her pain increased.”
The ship doctor diagnosed her with “peptic uicer disease," gave her medication, and
she returned to work. The compialnt alleged that under the Jones Act, RCCL was liable
for the failure of “its chosen doctors and agents” to properly diagnose and treat Aimonte.
The complaint alleged that under maritime law, RCCL was responsible to ensure
prompt and adequate medical treatment Almonte alieged RCCL breached its duty and
she suffered injury as a result of the negligence of RCCL “and/or its agents, servants,
andlor employees." RCCL filed an answer. RCCL denied the aiiegation that it chose
the onshore doctors or that they were the agents of RCCL.

Almonte did not file a federal maritime ciaim against the Seattle health care
providers for negligent care or treatmentl To invoke admiralty jurisdiction over a tort
claim against the health care providers, Almonte had to show the tort occurred on

navigable water or an injury suffered on land was caused by a vessel on navigable

NO. 7627 5»3-l/6

water. Jerome B. Grubart. lnc. v. Great Lakes Dredqe & Dock Co., 513 U.S. 527, 534,
115 S. Ct. 1043, 130 L. Ed. 2d 1024 (1995). The inquiry under the connection test is
whether the allegediy tortious activity “is so closely related to activity traditionally subject
to admiralty law that the reasons for applying special admiralty rules wouid apply in the
suit at hand.” M, 513 U.S. at 539»40.

November 2013 Letter

On November 25, 2013, RCCL sent a “Notice and Tender of Defense and
Demand for indemnity” to Seattle Radiologists and Dr. lVlann. Seattle Radiologists and
Dr. lVlann denied tender of defense because the three-year statute of limitations barred
state law claims for medical maipractice in 2007.

2014 Settiement and Release

ln June 2014, RCCL settled the federai maritime lawsuit Almonte filed in Fiorida
for $700,000. ln exchange Almonte signed a release of all claims against RCCL and ai|
medical care providers

2015 indemnity and Contribution i_awsuit

On May 27, 2015, RCCL filed a iawsuit in King County Superior Court against
Swedish i-lealth Services, Seattle Radiologists, the Polyclinic, Dr. Frederick Mann, Dr.
Peggy l-leadstrom, and Dr. Kyung l-ian (collectively, health care prcviders) for equitable
contribution and indemnity under federai maritime law and breach of an implied
maritime contractual claim. in the alternative RCCL asserted claims for contribution
and indemnity under state law. The health care providers filed answers and asserted a

number of affirmative defenses, including the statute of limitations

NO. 76275-3-|/7

Nlotion for Partial Summarv Judqment on indemnity and Contributlon Clai___r'_r_i_s_

The health care providers filed motions for summary judgment dismissai of the
federal maritime and state law ciaims for indemnity and contribution The health care
providers argued RCCL could not meet the test under M to invoke admiralty tort
jurisdiction and the undisputed evidence did not establish breach of an implied maritime
contract The health care providers argued the court should dismiss the state law claim
for contribution because there was no “agency relationship” under Washington iaw.

in opposition, RCCL argued it did not seek equitable indemnity and contribution
for a tort claim against the health care providers. RCCL argued the equitabie
contribution and indemnity claim is governed by the underlying Jones Act negligence
ciaim asserted in the Florida lawsuit

[T]he underlying claim giving rise to the indemnity action was maritime-

here Almonte’s claims against RCCL for Jones Act negligence and

unseaworthiness-rather than the facts of Defendants’ own negligence as

if this were a direct malpractice claim.

RCCL argued the evidence supported breach of an impiied warranty because
RCCL “has been sending crewmembers to The Polyclinic and Swedish” and paying for
treatment “for more than 15 years.” RCCL argued whether the health care providers
were the agents of RCCL under state law was a disputed question of fact.

The court granted the motion for partial summary judgment dismissai of “Federai
Adrniralty Tort Claims for Breach of implied Contractual lndemnity, Breach of the
implied Warranty of Workmanlike Performance, Equitable indemnity and Contribution,
and State Law Statutory Clairn for Contribution." 'i'he court issued a 15-page order.

The court ruled RCCL could not establish the test under Grubart for admiralty tort

jurisdiction i-lowever, the court ruled that "[e]ven assuming maritime law were to

No. 76275-3~i/8

app|y," the undisputed evidence did not support finding RCCL was entitled to indemnity
or contribution under federal maritime law. The court rejected the maritime claim for
breach of an implied contract

ln this case, based on the uncontroverted facts in this record, the
court finds that there is insufficient evidence upon which a trier of fact
could find a “special relationship” between plaintiff RCCL and any of these
defendants to invoke implied contractual indemnity or indemnity based on
breach of workmanlike warranty.

in California Home Brands. inc. v. Ferreira, 871 F.2d 830[, 836} (9th
Cir. 1998),[5] the Ninth Circuit Court of Appeals explained the reasoning
behind the implied warranty of workmanlike performance and observed
“that [‘]a covenant of workmanlike performance will not be implied in favor
of a shipowner unless there is a relationship between the tortfeasor[ j and
the shipowner in the context of shipping that makes the implication
reasonable.[’ ]” This approach was adopted by the courts in SeaRiverlGl
and Nlaritime Overseasi"'l where they found that this relationship existed
based on selection of providers and direct contact between the parties
which supported an implied contract ln SeaRiver, the court found past
dealings evidencing an understanding between the parties ln Maritirne
Overseas the court found that each element of contract had been proven
following the ship’s specific choice of medical facilities Here, RCCL has
not provided evidence upon which a trier of fact could find such a
relationship with these defendants

The record in this case, in contrast to that in SeaRiver and other
cases relied upon by RCCl., do not demonstrate that RCCL selected the
medical providers in this case or that the parties had an understanding
based upon past dealings that would effectuate a contract A!though the
Declaration of lVls. Arroyo attempts to establish an ongoing reiationship
with some of these defendants (Swedish lVledical Center, Polyclinic)
based on past referrai of crewmembers it does not create a genuine issue
of material fact to prove “an understanding, based on their relationship
and past dealings that [the shipowner] would send its injured empioyees
to [these treating providers], and that in return, [these treating providers]
would provide competent medical treatment to those employees."
SeaRiver[,] 983 F. Supp. [atj 1298.

 

5 Quoting Flunker v. United States, 528 F.2d 239, 243 (9th Cir. 1975).
6 SeaRiver Niar._ lnc. v. indus Nled. Servs.. lnc., 983 F. Supp. 1287 (N.D. Cal. 1997).
7 Nlar. Overseas Corg. v. United States, 433 i'-'. Supp. 419 (N.D. Cal. 1977).

NO. 76275-3-|/9

The court states the contribution claim under RCVV 4.22.040 “is only available if
RCCi_ paid as a principal on behalf of its agent[s].”8 The court found the undisputed
facts established the health care providers were not empioyed by RCCL, RCCL did not
choose to send Aimonte to Dr. l-leadstrom, and “all RCCL actuaily did was authorize
payment.” The court concluded a “reasonable trier of fact could find neither consent nor
control.” The court reserved ruling on the other state law claims “for equitable
contribution and/or indemnity under Washington iaw.”

Niotion for Surnmarv Judqment Dismissal of State Claims

The health care providers filed summary judgment motions to dismiss the state
law claims for equitable contribution, equitable indemnity, equitable subrogation and
unjust enrichment The court granted the summary judgment motions and dismissed
the claims The court ruled the doctrine of equitable contribution under Mutual of
Enumclaw insurance Co. v. i.lSF insurance Co., ‘l64 Wn.2d 411, 191 P.3d 866 (2008),
did not apply. Because RCCL “steps in the shoes” of Almonte and her medical
malpractice claims are “barred by the [three-yearj statute of limitations," and because
there is no evidence of bad faith, the court dismissed the equitable subrogation claim
and conciuded equitable tolling did not apply. The court dismissed the claim for unjust
enrichment because the statute of limitations had run on any claim for medical
malpractice that Almonte had against the physicians

The court dismissed the equitable indemnity claim against Swedish Health
Services1 Seattie Radiologists, and Dr. Mann because there is "no genuine issue of

material fact that there was any representation made which was relied upon by RCCL

 

3 Alteration in original.

No. 76275»3-»|/1 0

and a duty created." l-iowever, the court reserved ruling on the equitable indemnity
claim against the Polyclinic and Dr. l-leadstrorn until after the parties deposed RCCi_
case coordinator Arroyo because “there is a question of what duty is owed by those
defendants to RCCl_.”

ln the deposition, Arroyo testified that she did not communicate directly with the
Polyciinic or Dr. i-leadstrom. Arroyo said she “did not have a diagnosis from Doctor
l-leadstrom” when she decided to send Aimonte home. ln a September 18, 2007 e-mail
Arroyo sent to RCCL, she states:

l wiil be calling Dr[.] Headstrom in getting information as there is still no

diagnosis and no treatment plan the “she can go back to the ship” is very

brief no actual ["]she can return to her job duties[”] or [“fit for duty”] on that

form. No Colonoscopy result was added on there as well.

This needs to be cleared . . . . [S]he is still not well and will not be able to
remain there so she wiil be sent horne for further treatment

Arroyo was not “able to make contact with Doctor i-leadstrom.” Swedish Nledlcal
Center sent Arroyo Almonte’s medical records on September 25. Arroyo testified that
September 25 was “the first time that [she] received clinical records about iVls.
Almonte’s care in Seattle.”

The court granted summary judgment dismissal of the equitable indemnity claim
against the Polyclinic and Dr. i-leadstrom. The court concluded the undisputed
testimony showed RCCL “had no communications with Polyclinic and/or Dr.
Headstrom," RCCL “received no information directly from Polyclinic at all,” and the first
time RCCL received medicai records from the Polyclinic was five days after Aimonte left
to return to the Dominican Republic. The court found the “only information" RCCL

received was a note “saying that [Almonte} could return to the ship,” and the note was

10

No. 76275-3-|/11

“provided by the patient, . . . not by Poiyclinic or by [Dr.] l-leadstrom." The court ruled as
a matter of law “no equitable indemnity claim can lie under the facts of [this] case” and
no evidence shows “a duty between the medical professionals and RCCL.”
APPEAL Ol-' SUMMARY .iUDGNlEl\lT DlSl\/|lSSAl_ OF FEDERAL AND STATE CLAliVlS

RCCL contends the court erred in dismissing the federal maritime law ciaim for
equitable indemnity and contribution, the federal maritime ciaim for breach of an implied
contract and the alternative state law claims for contribution and indemnity, equitable
subrogation and unjust enrichment

We review summaryjudgment de novo. l-iartley v. Statel 103 Wn .2d 768, 774,
698 P.2d 77 (1985). Summary judgment is appropriate When there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law. CR
56(0). This court engages in the same inquiry as the triai court, viewing the facts and all
reasonable inferences in the light most favorable to the nonmoving party. M
Burlinciton N. Santa Fe R.R., l53 Wn.2d 780, 787, 108 P.3d 1220 (2005). The
defendant on summary judgment has the burden of showing the absence of evidence to
support the plaintist case Young v. Kev Pharms., lnc., l12 Wn.2d 2161 225, 770 P.2d
182 (1989). Once the moving party shows an absence of a genuine issue of material
fact, the burden shifts to the nonmoving party. lqg_ng, 112 Wn.2d at 225.

' V\lhile we construe the evidence and reasonable inferences in the light most
favorable to the nonmoving party, if the nonmoving party “ ‘fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial,’ " summary judgment is proper.

Voung, 112 Wn.2d at 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.

11

No. 76275~3~|/12

Ct. 2548, 91 L. Ed. 2d 265 (1986)); Jones v. Allstate ins Co., 146 Wn.2d 291, 300»01,
45 P.3d 1068 (2002). “[Ni]ere allegations denials opinions or conclusory statements”
do not establish a genuine issue of material fact lnt’l Uitimate, lnc. v. St. Paul Fire &
Nlarine lns. Co., 122 Wn. App. 736, 744, 87 P.3d 774 (2004).

Questions of fact may be determined as a matter of law “ ‘when reasonable
minds could reach but one conclusion.’ ” __Qwe_n, 153 Wn.2d at 788 (quoting §ra_rtj§y,
103 Wn.2d at 775). “[A]n appellate court may affirm a grant of summary judgment on
an issue not decided by the trial court provided that lt is supported by the record and is
within the pleadings and proof.” Plein v. Lackey, 149 Wn.2d 214, 222, 67 P.3d 1061
(2003).

FEDERAL lVlARlTll\/lE Ci_Ali\/lS

State courts have concurrent jurisdiction to adjudicate maritime cases under the
“saving to suitors” clause of the United States Constitution. 28 U.S.C. § 1333(1);9 U.S.
CONST. art lli, § 2, cl. 1; Dean v. Fishinq Co. of Alaska, 177 Wn.2d 399, 405, 300 P.3d
815 (2013); Endicott v. icicle Seafoods, inc., 167 Wn.2d 873, 878»79, 224 P.3d 761
(2010). Federal maritime law governs maritime actions brought in state court _E__rM,
167 Wn.2d at 878-79.

1. Federa| Maritime Equitable indemnity and Contribution Ciaim
RCCL does not contest there is no jurisdiction over a federal maritime tort claim

under Grubart. RCCi_ contends it is entitled to equitable indemnity and contribution for

 

9 28 U.S.C. § 1333(1) provides “'i'he district courts shall have original jurisdiction, exclusive of the
courts of the States, of . . . [a]ny civil case of admiralty or maritime jurisdiction saving to suitors in all
cases all other remedies to which they are otherwise entitled." The Admira|ty Extension Act, 46 U.S.C. §
30101, states in pertinent part, “The admiralty and maritime jurisdiction of the United States extends to
and includes cases of injury or damage, to person or property, caused by a vessel on navigable waters
even though the injury or damage is done or consummated on iand.” 46 U.S.C. § 30101(a).

12

NO. 76275-3-|/13

the Jones Act negligence claim asserted in the Fiorida maritime lawsuit The
undisputed record establishes Almonte did not assert a tort claim in the Florida lawsuit
Almonte alleged federal maritime claims for unseaworthiness negligence under the
Jones Act, and maintenance and cure.

The federal maritime doctrine of maintenance and cure imposes a nonwaivable
and nondelegable duty on a shipowner to provide food, lodging, and medical treatment
to a seaman injured in the course of employment See ge Zon v. Am. President Lines
L, 318 U.S. 660, 667, 63 S. Ct. 814, 87 L. Ed. 1065 (1943). A seaman has the right
to recover damages for injuries sustained due to the unseaworthiness of the ship. M
Q_sgggjg, 189 U.S. 158, 1751 23 S. Ct. 483, 47 L. Ed. 760 (1903).

Congress passed the Jones Act in 192010 to create a negligence cause of action
for ship crewmembers against their employers Cal. Home Brands 871 F.2d at 833;
Rvan Stevedorinq Co. v. Pan~Atlantic S.S. Coro., 350 U.S. 124, 133-34, 76 S. Ct. 232,
100 L. Ed. 133 (1956). The Jones Act creates "a negligence cause of action o_nly
against the employer.” Cai. l-lome Brands 871 F.2d at 833.11 A sick seaman has a
cause of action under the Jones Act for the shipowner’s wrongful failure to provide
proper medical care M, 318 U.S. at 667-69. Congress extended to ship workers
the rights granted to railroad employees by the Federal Ernployers’ l_iability Act (FELA),
45 U.S.C. § 51. Cox v. Roth, 348 U.S. 207, 208, 75 S. Ct. 242, 99 L, Ed. 260 (1955).
Under FEl_A, an employer is “ ‘liabie for the injuries negligently inflicted on its

employees by its officers agents or employees.’ ” Craiq v. Atl. Richfieid Co., 19 F.3d

 

i° LAW OF June 5, 19201 ch. 250l § 33, 41 STAT. 1007 (codified as former 46 U.S.C. § 688).
ll Emphasis in original.

13

No. 76275-3-|/14

472, 477-78 (9th Cir. 1994)12 (quoting i-iopson v. Texaco lnc., 383 U.S. 262, 263, 86 S.
Ct. 765, 15 L. Ed. 2d 740 (1966)),

To recover under the Jones Act, the seaman must establish by a preponderance
of the evidence (1) negligence on the part of his employer, or agents thereof, and (2)
that the negligence Was a cause, "however slight,” of his injuries Havens v_ F/T Polar
_M_js_t, 996 F.2d 215, 218 (9th Cir.1993).

Whether RCCL is entitled to equitable indemnity and contribution for settlement
of the Jones Act negligence claim turns on whether the Seattle health care providers
were acting as the agents of RCCL. A shipowner is liable for the negligence of an
onshore doctor “when the shipowner selects a doctor who acts negligent|y." QM
Am. S.S. Co., 176 F.3d 891, 896 (6th Cir. 1999); see also Cent. Guif S.S. Corp. v.
Sambula, 405 F.2d 291, 299-302 (5th Cir. 1968) (treating onshore physician was ship’s
agent because the shipowner, not the crewmember, selected him); Nlar. Overseas
C_org;, 433 F. Supp. at 421 (doctor hired by shipowner is agent of the shipowner “and
the shipowner is liable for the malpractice of the doctor”); Fltzclera|d v. A.L. Burbani< &
L, 451 F.2d 670, 680 (2d Cir. 1971) (physician was ship’s agent where he provided
medical services under contract for the shipowner).

The undisputed record shows RCCL did not "choose" or select the Seattle health
care providers 'i'he record does not establish an agency relationship under the Jones
Act between RCCL and the Seattle health care providers When Sitka Community
i-lospital physician Dr. Robert Hunter discharged Almonte on September 9, 2007l he

referred Almonte to Dr. Peggy lieadstrom at the Polyclinic in Seattle Dr. l-leadstrom

 

12 internal quotation marks omitted

14

No. 76275-3-|/15

admitted Almonte to Swedish Medical Center and ordered diagnostic testing and a
colonoscopy. RCCL case coordinator Arroyo had no direct contact with Dr. l-ieadstrom
or the other Seattie health care providers

The declaration Arroyo submitted that states she “coordinate[d] Aimonte’s
treatment in Seattie” by arranging Almonte’s “transportation, iodging, appointments
payment of medical expenses and foilow-up care“ does not create a materiai issue of
fact Arroyo did not testify that RCCL engaged or selected Dr. I-ieadstrom or the other
Seattle health care providers to treat Aimonte. Aithough Arroyo testified that she
“c|osely reviewed Almonte’s medicai records,” the record shows the first time Arroyo
had access to the medical records was five days after Airnonte flew to the Dominican
Repub|ic.

The Septernber 10 t_etter of Confirmation of Benefits Niedicai Services and
payment for medical care does not show an agency relationship RCCL had an
absolute duty under the doctrine of maintenance and cure to pay medical expenses
Because there is no agency relationship between the parties under the Jones Act, we
affirm the summary judgment dismissai of RCCL‘s federai maritime claim for equitable
indemnity and contribution
2. Federal Niaritime implied Contractual indemnity Claim

ln Byag, the United States Supreme Court held there is an implied warranty of
workmaniil<e performance in every contract between a maritime contractor and a
shipowner B_yL, 350 U.S. at 133-34. “'i'he warranty of workmanlike performance is

intended to ease the burden of absoiute liability by permitting a shipowner to recover

15

NO. 76275-3-!/16

against a contracting party whose poor workmanship created the dangerous condition.”
Cal. Home Brands 871 F.2d at 836.13

in Waterman Steamship Corp. v. Dudan & NlcNamara, |nc., 364 U,S. 42t, 8i S.
Ct. 200, 5 L. Ed. 2d 169 (1960), the Supreme Court extended Ryan indemnity to
situations where there was no express contractuai relationship A shipowner can be
held vicariously liable under the doctrine of unseaworthiness for the acts of third parties
that cause injury to a seaman. Flunl<er, 528 F.2d at 242. in Joiner v. Diamond Ni
Drii|ing Co.1 677 F,2d 1035, 1038 (5th Cir. 1982), the Fifth Circuit held absent a special
relationship, Ryan indemnity does not apply to a “private land~locked physician.”

A private land-iocked physician Who treats a patient who happens to have

been injured at sea, does not thereby enter into an implied maritime

contract We can find absolutely no support for the proposition that an

ordinary, private, onshore physician who treats an injured sailor has

thereby submitted himself to the rules of maritime commerce Rather, it

has been consistently held that it is state law which controls in cases such

as this
Joiner, 677 F.2d at 103814

RCCL contends there is a genuine issue ot material fact as to whether RCCL had
a speciai relationship with the Seattle health care providers RCCL cites il/iaritime
Overseas, 433 F. Supp. 419, and SeaRiver, 983 F. Supp. 1287. ln l\llaritirne Overseas,
the shipmaster contacted the government hospital in Japan to treat a crewmember and
agreed to pay for care. i\/iar. Overseas, 433 F. Supp. at 420. The shipowner filed an
indemnity action for breach of an impiied contractl Niar. Overseas, 433 F. Supp. at 42‘i.

Because the shipmaster seiected the hospital and requested treatment in exchange for

payment the court heid the hospital was iiabie for breach of an implied contract Mar.

 

13 Ernphasis in orlginai.
14 Emphasis in original.

16

NO. 76275-3-{/17

Overseas, 433 F. Supp. at 422. tn SeaRiver, the court held there was an implied
contractual relationship because the shipowner “regulariy referred its employees in
need of medical treatment to [the clinic]” for 8 to 10 years SeaRiver, 983 F. Supp. at
1298-99, t291. The court concluded the parties “developed an understanding1 based
on their relationship and past dealings that [the shipownerj would send its injured
employees to [the clinicj, and that in return, [the ciinic] would provide competent medical
treatment to those employees.” SeaRiver, 983 F. Supp. at 1298.

`the evidence that RCCL has paid Swedish and the Poiyciinic for 15 years to
treat crewmembers does not create a material fact. Absent any evidence that the
payments were made as the result of a referral by RCCL, the payments alone do not
establish an implied contract. On this record, a reasonable trier of fact could only
conclude there was no speciai relationship between the parties We conciude the court
did not err by dismissing the implied contractual indemnity under federal maritime iaw.
STATE LA\N CLAll\/iS
1. RCW 4.22.040 and RCW 4.22.070

RCW 4.22.040 establishes a right of contribution between joint and severalty
liable parties RCVV 4.22.070(1)(a) allows joint and several liability where “the negligent
parties were acting in concert or where there was a master/servant or principal/agent
reiationship at play.” Kottler v. State, 136 Wn.2d 437, 446, 963 P.2d 834 (1998).

Under Washington iaw, “an agency relationship resuits from the manifestation of
consent by one person that another shall act on his behalf and subject to his control,
with a correlative manifestation of consent by the other party to act on his behalf and

subject to his controi.” lVloss v. Vadrnan, 77 Wn,Zd 3961 402-03, 463 P.2d 159 (1969).

17

NO. 76275-3-|/18

A prerequisite of agency is “ ‘Qn_t_r_gj of the agent by the principal.’ ” Bain v. l\/letro.
Nlortg. Grg., lnc., 175 Wn.2d 83, 107, 285 P.3d 34 (2012)15 (quoting M§, 77 Wn.2d at
402). RCCL has the burden of establishing agency l\/l&s_,, 77 Wn.2d at 403. `l`he
existence ct a principal-agent relationship is a question of fact unless the facts are
undisputed or reasonable minds could reach oniy one conclusion O’Brien v. Hafer, 122
Wn. App. 279, 284, 93 P.3d 930 (2004).

RCCL argues the declaration of Arroyo creates a genuine issue of material of
fact whether RCCL and the health care providers had an agency relationship under
Washington law. Arroyo testified that she “worked with RCCL’s agents in Sitka and
Seattle to coordinate Almonte‘s treatment in Seattle, including her transportation,
iodging, appointments payment of medical expenses and foliow-up care.”

The undisputed facts show RCCL did not refer Almonte to the Seattle heaith care
providers Nothing in the record shows that the health care providers consented to act
as RCCL’s agent or that RCCL exercised any control over the treatment of Aimonte by
the Seattle health care providers The record shows that RCCL “doesn’t have internal
operating procedures or policies dictating how medical care should be provided." RCCL
leaves medical care decisions “up to the doctors” and the doctors “n'iake the
determinations as to the appropriate care and treatment to provide to a crew member
that they’re treating as a patient." Arroyo testified that she had no “direct
communication with Doctor Peggy l-leadstrom." Arroyo testified that she did not
“receive any direct medical information from the Poiyclinic about iVls. Almonte." The

court did not err by dismissing the claim for contribution under RCW 4.22.040 and .070.

 

15 Emphasis in original.

18

No. 76275-3-|/19

2. Equitable Contribution Claim

RCCl. contends the court erred by ruling it is not entitled to equitable contribution
under Niutual of Enumciaw, 164 Wn.2d 411 in the context of insurance law, “equitable
contribution is a right of one insurer to collect from another insurer on a loss that both
insurers are concurrently obligated to cover." Nlut. of Enumclaw, 164 Wn.2d at 423.16
in Mutual ot Enumclaw, the Washington Supreme Court expressly notes the doctrine
does not apply to joint tortfeasors lViut. of Enumclaw, ‘l64 Wn.2d at 417 n.1
(Contribution and subrogation in the insurance context differ “marl<edly from traditional
notions of these concepts in tort law or even in contract iaw. We do not intend this
opinion to affect general tort or contract |aw."). None of the cases RCCL cites address
equitable contribution between tortfeasors “l“he court did not err by dismissing the claim
for equitable contribution
3. Equitable indemnitv

RCCL claims the court erred in ruling RCCL did not establish a right to equitable
indemnity17 An equitable indemnity right exists if there is a legal duty between RCCL
and the Seattle health care providers Sabev v. i~ioward Johnson & Co., 101 Wn. App.
575, 592, 5 P.3d 730 (2000). l_egal duty is a question of law which the court reviews de
novo. Webb v. Neuroeduc. inc.. P.C., 121 Wn. App. 336, 346, 88 P.3d 417 (2004).

l-lere, unlike in M, the record shows the health care providers did not owe a

duty to RCCL. Contrary to the assertion of RCCL, the note Dr. i-leadstrom gave to

 

15 Ernphasis in original.

17 For the first time on appeall RCCL cites Ne|son v. Sponberg, 51 Wn.2d 371, 374-75, 318 P.2d
951 (l957), to argue equitable indemnity does not require a legal duty. RCCL did not raise this argument
below. §_e_e_ RAP 9_12 (on review of order granting summary judgmentf "appellate court will consider only
evidence and issues called to the attention of the trial court").

19

No. 76275~3-1/20

Almonte that cleared her to return to the ship does not create a duty to RCCL under
chapter 7.70 RCV\l. The court did not err in dismissing the claim for equitable indemnity.
4. Equitable Subroqation

Equitable subrogation “allows one party to step into the shoes of a second party
who is owed a debtor obligation and to receive the benefit of that debt or obligation in
the absence of any contractual agreement or assignment of rights between those two
parties or the debtor.” Columbia Cmtv. Bank v. Newman Park, LLC, 177 Wn.2d 566,
573, 304 P.3d 472 (2013). But equity will enforce rights only if the action is brought
within the time in which an action could have been brought to enforce the original
obligation. Newcomer v. lVlasini, 45 Wn. App. 284, 286, 724 P.2d 1122 (‘i986). The
three-year statute of limitations bars the equitable subrogation ciaim.

RCCL cites Ellis v. Barto, 82 Wn. App. 454, 918 P,2d 540 (1996). §ili_s holds that
“if a claim is substantively based upon the law of another stats the limitation period of
that state applies.” _E_B, 82 Wn. App. at 457-58. But RCCl_’s equitable subrogation
claim is under Washington law, not Fiorida law.

in the alternative, RCCt. contends equitable tolling applies to its claim for
equitable subrogation “The predicates for equitable tolling are bad faith, deception, or
false assurances by the defendant and the exercise of diligence by the piaintifl.” My
y_”_g__a__n;, f35 Wn.2d 193, 206, 955 P.2d 791 (t998). RCCL does not argue that the
health care providers acted in bad faith or made false assurances nor does the record
support such a conclusion

We conclude the court did not err by granting summary judgment dismissal of

RCCL’s claim for equitable subrogation

20

NO. 76275-3-l/21

5. Unjust Enrichrnent

`i'o state a claim for unjust enrichment1 the plaintiff must show (1) the defendant
received a benefitl (2) the benefit received is at plaintiffs expense, and (3) the
circumstances make it “unjust for the defendant to retain the benefit without payment.”
Young v. Young, 164 Wn.2d 477, 484-85, 191 P.3d 1258 (2008). RCCL contends the
20l4 settlement and release conferred a benefit on the health care providers Because
Almonte’s claim against the health care providers was barred by the statute of
limitations when the parties entered the settlement and release, the court did not err in
dismissing the claim for unjust enrichment

We affirm summary judgment dismissal of the claims under federal maritime law

and state law.

VVE CONCURZ

Ml.a;_, M/
7

2l

 

