Litigation or War of Attrition?

By John Merriam

A case that should have settled with a phone call ended up in the state Supreme Court. A claim for unearned wages from a fishing boat resulted in proceedings before a half-dozen King County Superior Court judges, a jury trial, and decisions from the Court of Appeals and Supreme Court. Miller v. Arctic Alaska Fisheries, 83 Wn. App. 255, reversed, 133 Wn.2d 250 (1997). At different times, either side had an opportunity to settle the case for $10,000.

In January 1993, Edward Miller was employed as a cook/processor aboard the Arctic Alaska (now Tyson) vessel Westward Wind, for opelio crab season. During three weeks he received three injuries. The first was a blow to the knee from an unsecured door (hatch) that swung and aggravated a prior injury.

For the second injury, Miller claims that another processor, one Brian Ershinger, hit him with a crabpot while moving it with a hydraulic lift. Miller received a contusion to the back of his rib cage from that incident.

Opelio is the most lucrative of the crab seasons, and Miller kept working until he was forced off the vessel, not-fit-for-duty, by the third injury. During a roll of the Westward Wind, boiling water splashed out of the crab cooker and down the back of Miller's pants burning his buttocks.

Miller left the vessel at St. Paul Island, Alaska and was flown back to his home in Texas. He was paid wages only to the end of the trip during which he was evacuated, for 9 or 10 days, in the amount of $2,748. His medical bills were reimbursed at first and he received maintenance of $20 per day for a time.

Miller contacted a lawyer when Arctic Alaska refused to pay his wages to the end of the crab season which lasted to mid-March that year, the company claiming he was only entitled to be paid to the end of the 30-day contract he signed.

Counsel for Miller filed suit in March 1993, seeking recovery under the Jones Act, 46 U.S.C. S. 688; the general maritime law doctrine of unseaworthiness; for unearned wages for the remainder of the crab season during which, notwithstanding the 30-day contract; and for an increased lay -- claiming he should have gotten a greater crewshare percentage than set forth in his written contract of employment, both before and after his departure from the vessel, based upon verbal promises and custom in the industry.

Maintenance and cure was cut off almost contemporaneously with the Notice of Appearance from defense counsel. In its Answer, Arctic Alaska denied any injury to Miller and counterclaimed for fraudulent receipt of maintenance and cure. The battle was joined.

"Contentious discovery by both parties ensued." Miller v. Arctic Alaska Fisheries, 133 Wn.2d at 255. Defendant served six sets of interrogatories and requests for production on plaintiff; plaintiff served three sets on defendant. Defendant served six separate requests for Statements of Damages pursuant to RCW 4.28.360. Defense counsel initially suggested the appointment of a discovery master pursuant to CR 53.3. Plaintiff declined. Later, it was counsel for the plaintiff that made a motion for the appointment of a discovery master which was then successfully opposed by defendant. Defendant would not provide the report from its CR 35 medical exam until plaintiff made other discovery motions to the Superior Court, one of countless trips to the motion calendar.

Miller came to Seattle from Texas during summer 1993 to attempt employment in the fishing industry again. While he was in Seattle, counsel for the plaintiff offered to make him available for in-person deposition, suggesting that a follow- up deposition could be had by telephone should the need arise after further discovery. That offer was declined. When Miller returned to Texas, defense counsel noted his in-person deposition for Seattle. Plaintiff again appeared on the motion calendar, moving for a protective order and offering various alternatives to shift the cost of travel, or otherwise eliminate the need for another trip from Texas. The motion for a protective order was denied, forcing Miller to interrupt new employment in the Dallas area and come to Seattle for deposition and medical exam at his own expense. Later in the case, defense counsel noted a second in-person deposition of Miller in Seattle, refusing plaintiff's offer to do it by telephone. Plaintiff filed another motion for protective order. Miller's second deposition was then cancelled.

Defendant filed a Statement of Arbitrability in summer 1993, claiming that plaintiff was not seeking more than $35,000 pursuant to MAR. Plaintiff filed a Response to defendant's Statement of Arbitrability stating that Miller's claim did exceed $35,000 and that mandatory arbitration was not appropriate. The case was put back on the regular trial schedule after another court appearance.

Defense counsel subpoenaed plaintiff's private investigator for deposition without notice to plaintiff. When the investigator appeared for the deposition at the office of defense counsel, without the knowledge or presence of plaintiff's counsel, plaintiff's investigator was requested to hand over his file to defense counsel for inspection. That request was refused.

Prior to more trips to the motion calendar, counsel for the parties engaged in a one-and-one-half-hour discovery telephone conference. Defense counsel put plaintiff's counsel on the telephone speaker at his end with a secretary present as a potential affiant for later disputes.

Defendant filed a motion for summary judgment on its counterclaim for fraudulent receipt of maintenance and cure, based upon the allegation that Miller fraudulently concealed his prior knee surgery. Defendant never noted that motion for argument on the summary judgment calendar and it was never ruled upon.

Opposing counsel filed bar complaints against each other.

Defense counsel noted a video perpetuation deposition for the crewmember alleged to have hit Miller in the back with the crab cage, Brian Ershinger. Ershinger had been fired from the vessel and had flown back to Anchorage on the same plane as Miller following Miller's treatment for burns. Ershinger stated in his deposition that Miller was on  drugs, seasick, and unable to do his job. Despite the fact that an Alaska medical clinic had just documented the presence of second- or third-degree burns on Mr. Miller’s buttocks, Ershinger claimed that Miller had no problem sitting in his seat aboard the plane. Ershinger could not thereafter be located for an interview about some of his deposition testimony. Plaintiff later filed a motion to compel responses to later written discovery concerning Mr. Ershinger.

Defense counsel subpoenaed plaintiff's counsel for a deposition at the office of defense counsel concerning a collateral matter. That deposition was cancelled after plaintiff filed a motion to quash the subpoena.

Miller wrongfully received unemployment compensation during periods that he worked in January 1993. He continued to receive unemployment while he was getting maintenance and cure from Arctic Alaska in the late winter and early spring 1993. Defense counsel suggested that Miller take a voluntary dismissal of the case or face charges of unemployment fraud. Miller refused, taking the position that while he should not have retained the monies he received while working aboard the Westward Wind, receiving unemployment along with maintenance and cure at the same time is not improper when a person has medical clearance for some type of employment, even if not-fit-for-duty for work as a fisherman. Shortly thereafter Miller was hit with an assessment for a $10,000 overpayment from Texas unemployment. Although contending that only a fraction of that amount was improperly received, Miller missed the deadline to request a hearing from the Texas agency.

Despite numerous attempts and a motion to compel, plaintiff was never provided with the medical log from the Westward Wind for the dates of the injuries that defendant claimed never happened.

Crucial to plaintiff's case was information concerning the wages he would have earned had he worked the entire crab season. Not successful in written discovery, plaintiff had opted to obtain this information by way of CR 30(b)(6) deposition. In December 1993, a 30(b)(6) deposition was noted for the records custodian of Miller's personnel file at the Arctic Alaska's offices on Fishermen's Terminal. Presumably as a courtesy, defense counsel suggested to plaintiff's counsel that the deposition be held at the office of plaintiff's counsel. The 30(b) 6) deponent arrived at the office of plaintiff's counsel without any documents whatsoever. The deponent had no knowledge of Mr. Miller's injuries aboard the Westward Wind.

In all, it took one year of discovery battles for Miller's personnel file to be obtained from Arctic Alaska and its lawyer. Wage documentation for the remainder of the crab season has never been received.

Following the aborted 30(b)(6) deposition, plaintiff brought a motion to compel discovery that was heard by Judge Nancy Ann Holman. Judge Holman ordered that another 30(b)(6) deposition be taken with some modifications. Both counsel and Judge Holman contributed to the order that was entered at the conclusion of the hearing, and her decision was less than clear to counsel for the plaintiff.

Despite language in Judge Holman's order that some of the requested information in fact been provided at the first 30(b)(6) deposition, counsel for the plaintiff simply reissued the notice of deposition from the first go-round. Defense counsel responded by bringing a motion for contempt against counsel for the plaintiff that was heard by Judge Sharon Armstrong.

Using what plaintiff claims were misrepresentations of fact, defendant managed to convince Judge Armstrong that plaintiff was bringing a nuisance case. Defense counsel also accused plaintiff's counsel of engaging in a conspiracy to commit unemployment fraud with the plaintiff. Judge Armstrong fined counsel for the plaintiff $300, personally, for discovery abuse. She imposed a $10,000 cost bond on the plaintiff pursuant to RCW 4.84.210. She also granted defendant's motion to amend the Answer to assert a second counterclaim for fraudulent receipt of unemployment from Texas, but deferred the contempt motion to Judge Holman. The contempt motion was never followed up on by defendant.

On plaintiff's motion for reconsideration, Judge Armstrong reduced the cost bond from $10,000 to $300, but left her other rulings intact. Although plaintiff was able to obtain his personnel file by way of a subsequent 30(b)(6) deposition, Judge Armstrong's rulings effectively thwarted further pursuit of wage documentation.

Judge Armstrong further recommended the case for early assignment to the Individual Calendar. The case was assigned to Judge Carol Shapira in late spring 1994.

Meanwhile, a letter from defense counsel to his client was delivered to plaintiff's counsel in apparent error. The letter included reference to poisoning a judge's mind. Counsel for the plaintiff wished to use the letter as an exhibit for a motion to reconsider to Judge Armstrong but was prevented from doing so by a temporary restraining order issued by Judge Shapira on ex-parte application by defense counsel. At a later, contested hearing on the matter before Judge Shapira, plaintiff unsuccessfully argued that inadvertent disclosure waives the attorney-client privilege at least for the particular document disclosed. Judge Shapira declined plaintiff's invitation for an in-camera inspection of the letter before her ruling. A permanent injunction on usage of the inadvertently disclosed letter was issued by Judge Shapira and counsel for plaintiff was prevented from discussing the letter further. However, Judge Shapira did allow plaintiff to use the inadvertently disclosed letter as part of a bar complaint against defense counsel.

Judge Armstrong likewise refused in-camera inspection of the inadvertently disclosed letter in support of plaintiff's motion for reconsideration of her imposition of sanctions and a cost bond. The refusal of both superior court judges to undertake in camera inspection of the inadvertently disclosed letter was one of the issues that the Supreme Court declined to review, Miller v. Arctic Alaska Fisheries, 133 Wn.2d at 269, n.8. Three years after the "poison mind letter" was inadvertently or deliberately misaddressed, the state bar dismissed bar complaints that opposing counsel had filed against each other in regard to that letter.

Thirty days after service of process, when this case first started in early 1993, Miller authorized a $10,000 statutory offer of settlement pursuant to RCW 4.84.250 et seq., to be withdrawn if not accepted within 10 days of its making.The offer was not responded to timely. Instead, defendant served a statutory offer of settlement in the amount of $4,300 on its counterclaim for fraudulent receipt of maintenance and cure. Plaintiff responded to the counterclaim by making his own statutory offer of settlement for one dollar. Defendant later made a statutory offer of settlement on plaintiff's entire claim, likewise for one dollar. Before that, in fall 1993, defendant had offered $10,000 to plaintiff, not in statutory settlement form, after plaintiff's statutory offer of settlement in the same amount had lapsed. The $10,000 offer was rejected by plaintiff.

Mediation was conducted by Mac Archibald in September 1994, shortly before trial. At mediation, plaintiff increased his settlement demand to $70,000. Defendants offer was one dollar. Mediation failed.

Defendant demanded a 12-person jury. Plaintiff did not object. Trial was scheduled to commence before Judge Shapira on October 17, 1994. Just before trial the case was transferred to Judge Charles Mertel. Trial lasted three days.

Other than a chart note from a clinic in Alaska, plaintiff's only medical evidence consisted of letters from two Texas doctors submitted per Evidence Rule (ER) 904. The trial judge excluded the letters as hearsay even though recognizing that defendant's objection was not timely. That ruling captured the most attention from the appellate courts. Miller v. Arctic Alaska Fisheries, 83 Wn.App. 255, reversed, 133 Wn.2d 250 (1997).

At trial, Miller testified to unreimbursed expenses for medical attention and prescriptions, but the only unpaid bill he could locate was in the amount of $688. That medical bill was excluded from evidence because Miller was unable to adequately verify what treatment it was for.

After Miller rested his case, the judge granted directed verdicts of dismissal to defendant on the claims for unseaworthiness, cure (medical reimbursement), punitive damages (for an alleged early cut-off of maintenance), unearned wages past the period covered by the 30-day contract, and for earned and unearned wages at a greater rate than set forth in the written contract. Of all the claims brought by Miller, the jury was given only Jones Act negligence and the possible entitlement to extra maintenance at $20 per day, along with defendant's counterclaims.

The only exhibit containing lost wage information concerned the nine or ten days of unearned wages, $2,748, that Arctic Alaska had paid Miller for the remainder of fishing during January 1993.

The jury found for Mr. Miller on Jones Act negligence and against him on his claim for more maintenance. It also ruled against defendant on its counterclaims. The jury was apparently confused by the special verdict form. Its gross award was for $1,374, exactly half the amount of unearned wages that were paid Miller for 9 or 10 days. But the jury also found 50 percent comparative negligence on the part of Miller, requiring the trial court to cut the gross award in half again, a halving that the jury had apparently already done in error. The net verdict to Miller was for $687. Ironically, that amount is one dollar less than the only unreimbursed medical bill Miller could produce and which was excluded from evidence.

The jury did not indicate for which of the three injuries claimed by Miller they made their award. However, a conversation between plaintiff's counsel and the foreperson after trial indicated that the jury found Jones Act negligence for only one of the incidents at issue: the buttocks burns.

Post-trial, Judge Mertel awarded $1,500 attorney fees to plaintiff pursuant to RCW 4.84.250 et seq., based upon defendant's failure to improve on the one dollar statutory offer of settlement from plaintiff on defendant’s counterclaim(s).

Miller appealed to Division One.

Miller made eight assignments of error in the Court of Appeals. Division One granted Miller a new trial on defendant's untimely objection to the ER 904 medical records. 83 Wn.App. 255 (1996). In an unpublished portion of the opinion, Division One also reversed dismissal of one of Miller's claims for unseaworthiness (the back injury) but affirmed the trial court's dismissal of his other causes of action on directed verdict. The Court of Appeals rejected Miller's other assignments of error.

Arctic Alaska petitioned for review to the Supreme Court.

The Supreme Court reinstated the trial court's verdict. Again, that tribunal seemed primarily interested in ER 904 issues. 133 Wn.2d 250 (1997). Reversing the Court of Appeals, however, the Supreme Court held that the exclusion of Miller's ER 904 medical evidence was harmless error, stating that the doctor letters were "merely cumulative" because they served only to corroborate Miller's own testimony about his physical problems. 133 Wn.2d at 261.

Dismissal of the unseaworthiness claims was also held to be harmless error because Miller ostensibly recovered identical damages under the Jones Act. 133 Wn.2d 265-66.

Finally, 30-day contracts of employment were upheld by the Supreme Court by citation to 46 U.S.C. $ 10601 (requiring written contracts of employment for fishermen). 133 Wn.2d at 267-68.

The problem with the Supreme Court's reasoning seems apparent from the decision itself. Readers of this publication can draw their own conclusions about whether it is harmless error to exclude medical corroboration for subjective complaints by plaintiffs. As to dismissal of unseaworthiness claims, the Supreme Court recognized that Miller claimed three separate injuries. 133 Wn.2d at 254. The special verdict form did not specify for which injury or injuries the jury awarded the $687 net verdict. For the 30-day contracts of employment, 46 U.S.C. S 10601 was enacted to protect fishermen for their earned wages. Neither the Supreme Court nor the Court of Appeals engaged in any public policy analysis, as urged by Miller, for unearned wages, that compensation due following injury to wards of the court.

The Supreme Court was apparently so determined to stop further proceedings in this case that it took seeming liberties with law and logic to prevent a second trial.

Miller was represented by John Merriam. Arctic Alaska was represented by Dennis Moran of LeGros, Buchanan & Paul.

John Merriam is a sole practitioner in Seattle representing seamen on wage and injury claims.

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