### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II JEREMY GIBSON, No. 49340

- 3

- II

Appellant.

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

Respondent.

S UTTON , 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 th is issue under the LHWCA , un der Gizoni , 3 Gibson’s Jones Act claim s 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 s ea - 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)

. Filed Washington State Court of Appeals Division Two September 26, 2017No. 49340

- 3

- II

2

we reverse the superior court’s summary judgment dismissal order of Gibson’s Jones Act claim s , 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 m arine c onstruction department . Gibson f ell through a hatch while working on

a c rane barge moored at American’s dock . He w as treated for head, back, ne ck, 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 cl aim 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 agr eed 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 spin al 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 t he 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 bene fits 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 di sapproved within thirty days after submission for approval.No. 49340

- 3

- II

3

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 discharge d its liability for the LHWCA claim. The Department’s d istrict d irector approved the agreed settlement and signed a final compensation order i n Dec e mber 2015 , closing Gibson’s LHWCA claim . The compensation o rder 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 consi dered 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 th e course of employment with the employer on or about 08/08/ 2013. 2. That liability of the employer for compensation under the abo ve cited Act was insured by the American Longshore Mutual Assn. Ltd. 3. The p arties have agreed to settle the claim as outlined in the attached settlement agreement. 4. The District Director, pur suant to § 8( i) of t he 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 t he Longshore and Harbor Workers’ Compensation Act, the District Directo r having reviewed the attached agreement and stipulation by and betwee n the interested parties hereby approves the agreed settlement. This

. . . . (3) A settlement approved under this section shall discharge the liability of th e 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.No. 49340

- 3

- II

4

approval effects a final disposition of the c laim, discharging the liability of the employer and insurance carrier in accordance with the terms of t he settlement. The employer and insurance carrier are hereby ordered to pay all amounts due. Clerk’s P apers 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, h e a lleged that he was both a sea - based and land

- based maritime worker

. American filed a CR 12(b)(6) motion to dismiss based on failur e to state a claim upon which relief can be granted and submitted declarations

. American a rgued that the LHWCA compensation order precluded Gibson from bringing a Jones Act claim and assert ed election of remedies, equitable estoppe l , 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

. T he superior

cou rt 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 claim s because (1) under Gizoni , the issue of his maritime worker status , non - seaman or seaman , was n ever 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 claim s , 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

- seamanNo. 49340

- 3

- II

5

was never adjudicated under the LHWCA and the compensation order did not expressly resolve th is 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. L EGAL P RINCIPLES 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, bu t there is no hypothetical set of facts that could conceivably be raised by the complaint to support a legally sufficient claim.” Worthingto n 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), b ut “ 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 out side 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 t he complaint , including American’s declarations. Therefore, we treat the superior court’s dismissal order as a decision on a motion for summary judgment. C R 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.No. 49340

- 3

- II

6 II

. M ARITIME W ORKERS ’ C OMPENSATION

— T HE LHWCA AND T HE J ONES A CT “[M] aritime action s brought in Washington courts ‘ are g overned 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. T HE LHWCA
T he 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

- 0 3. 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 f or 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 , p ayments are made to the qualified maritime w orker regardless of employer fault

. 33 U.S.C. § 904(b ). I n exchange for scheduled benefits for th e 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 fa l ls within the a ct. 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
pe rmanent and temporary disability, or death. 33 U.S.C. § § 908

- 09.No. 49340

- 3

- II

7

Whe n 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. T HE J ONES A CT Seamen injured on the job generally do not qualify for federal or state worker s’ 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 chapte r pursuant to any other workers’ compensation law or [the Jones Act] shall be credited against any liability imposed by this chapter.No. 49340

- 3

- II

8

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)

. I njured seam e n 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 t he injured worker

. Urie v. Thompson , 337 U.S. 163, 180, 69 S. Ct . 1018, 93 L

. Ed. 2d 1282 (1949).
C. R ELATIONSHIP B ETWEEN T HE LHWCA AND T HE J ONES A CT The United States Supreme Court has described these two a cts as complementary regimes that work in tandem: The Jones Act provides tort remedies to sea - based maritime workers, wh ile 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, 4 11

- 12 (5 th 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 fa ct, 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 seam e n because they happen to be working on board a vessel when they are injured, and seam e n 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 a cts are compl e mentary and are to be liberal ly construe d , the a cts overlap in practice ;No. 49340

- 3

- II

9

injured maritime workers, who se work is both sea

- based and land

- based , face a “ ‘ zone of uncertainty ’ ” regarding the relationship between the a cts. Simms , 709 F.2d at 411 (quoting
McDermott

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

. 1982).
II I

. P RECLUSIVE E FFECT OF T HE O RDER A PPROVING AN A GREED LHWCA S ETTLEMENT Here, the issue is whether Gibson ’s Jones Act claim s 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 - se a m a n 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 a ddressed whether an injured maritime worker’s receipt of benefits under the LHWCA bar s Jones Act claims. Gizoni , 502 U.S. at 91

- 92. The C ourt 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 seek ing 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 im posed by the LHWCA. Gizoni , 502 U.S. at 91

- 92 (emphasis added) (ci tations 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:No. 49340

- 3

- II

10

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 matt er of law. This is so because it is not the employee’s particular job that is determinative, but the emplo yee’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 , foot note, and internal quotation marks omitted)

. This point was reinforced by the Court’s citation to Simms , which state s 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 judicat a or collateral estoppel to apply to Jones Act claim s , there m ust 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 receive s 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 , t he 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
d id not preclude Jones Act claim s. Figueroa v. Campbell Indu s . , 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 mad e 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.No. 49340

- 3

- II

11

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
LH WCA award , which is statutorily limited to compensation for medical expenses and lost wages , would not preclude Jones A ct claim s for pain and suffering

. Figueroa , 45 F.3d at 316. Gizoni is c ontrolling , 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 LHW CA in t he 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

. R oberts , 566 U.S. at 93. And there is no potential for double recovery by Gibson because any LHWCA payments are credited to American i f Gibson prevails under the Jones Act

. 33 U.S.C. § 903 (e)

.

8 We acknowledge that a fter 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 Circu it 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)

.No. 49340

- 3

- II

12

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 claim s 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 unde r the LHWCA , Gibson’s Jones Act claims are not precluded by
the LHWCA settlement

. IV. A LTERNATE T HEORIES 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. E LECTION OF R EMEDIES /E QUITABLE E STOPPEL The election of remedies doctrine “‘ refers to situations where an individual pursues remedies that are le gally or factually inconsistent’ with each othe r.” 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 wh en the evidence shows there was ( 1 ) an admission, statement or act inconsistent with a claim later asserted; ( 2) reasonable reliance on that admi ssion, 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 C ount y , Inc. , 467 U.S. 51, 59, 104 S. Ct. 2218, 81 L. Ed. 2d 42 (1984)

.No. 49340

- 3

- II

13

Gizoni rejected the arguments that election of remedies or equitable estoppel apply when an injured maritime work er 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 f ull compensation credit removes the threat of double recovery, the critical element of detri mental 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

. C OLLATERAL E STOPPEL C ollateral 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 ess ential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the s ame 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 R ESTATEMENT ( S ECOND ) OF J UDGMENTS § 27 (1980) )

. Here, t he threshold question is whether the issue of Gibson’s maritime worker status was actually litigated and necessarily and finally determined i n 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 work er
status as to whether he was primarily sea - based or land

- based

. The compensation order approving the settlement of Gibson’s LHWCA claim d id 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 claim s .No. 49340

- 3

- II

14 CONCLUSION We reverse and remand for proceedings consistent with this opinion.

S UTTON , J. We concur:

M AXA , A.C.J.

L EE , J.