# FILE,,. IN OLERKI OFFICI aJPR!MECOURT,STA1SC/I'IM--.111-INir:m:roMr. 

## -.A yAY 09 2013

# r~JJ/ This opinion-wasfiled for reeord· at**n~~~~·~** Ronald R. arpenter**~upreme** CourtClerk 

### INTHE SUPREMECOURTOFTHE STATE OFWASHINGTON IANDEAN,Petitioner,


### v. THEFISHINGCOMPANYOF ALASKA, INC. andALASKA JURIS, INC., Respondents. ) ) ) ) ) ) ) ) ) ) ) 

### _________________________) No. 87407-7 ENBANC Filed: 

### MAY 092013

FAIRHURST, J.-Ian Dean worked aboard a fishing vessel owned by The Fishing Company ofAlaska (FCA). While aboard the vessel, Dean experienced pain in his hands and neck. After Deanleftthe vessel, he soughtmedical treatment and FCA began paying Dean maintenance and cure as required by general maritime law. Afterpaying Dean's maintenance and cure forjustoverthree years, FCA stopped paying when it obtained the opinion of a physician that Dean's injuries had reached maximum cure. At the time when FCA cut off Dean's maintenance and cure, Dean's own physician opined that Dean's injuries couldDean v. Fishing Co. of Alaska,No. 87407-7 

### benefit from additional treatment. Dean sued FCAin King County Superior Court. Dean also filed a motion asking the trial court to order FCA to resume paying maintenance and cure. The trial court applied a summary judgment standard to Dean's motion and denied the motion. The Court ofAppeals affirmed. We reverse the Court ofAppeals. FACTS ANDPROCEDURALHISTORY In May and June 2006, Dean worked as a fish processor aboard theAlaska Juris, 

### a fishing vessel owned by FCA. During that time, Dean worked in quarters with a low overhead so thatDean, who is 6 feet, 3 inches tall, hadto work stooped

over. Soon after leaving the ship, Dean sought medical treatment for pain in his neck, wrists, and hands. A physician diagnosed Dean's neck pain as muscle strain and prescribed over-the-counter medication. Dean did not seek additional treatment for his neck pain until May 2008, at which time a different physician recommended physical therapy and light massage. Dean's hand pain was diagnosed as carpal tunnel syndrome. Dean had carpal tunnel release surgery in 2008 and 2009. FCAbeganpaying Dean maintenance and cure soon after Dean left the ship in June 2006. In August 2009, FCA hired Dr. Thomas Williamson-Kirkland to examine Dean's neck. Dr. Williamson-Kirkland stated that his examination revealed Dean's neck to be normal. Furthermore, Dr. Williamson-Kirkland stated,
2Dean v. Fishing Co. of Alaska,No. 87407-7 

### while it was possibleDean's neckhadbeen injured on theAlaskaJuris, any injury "wouldhave resolved within several months ofleaving the vessel." Clerk's Papers at 41. Shortly after Dr. Williamson-Kirkland's examination, FCA stopped paying maintenance and cure. In October 2009, Dr. Alfred Aflatooni, Dean's treating physician, opined that Dean could benefit from additional treatment for both his handandneckinjuries. Dean suedFCA in King County Superior Court for personal injury damages under the Jones Act, 46 U.S.C. § 30104, and for maintenance and cure under general maritime law. Prior to trial, Dean filed a motion to reinstate maintenance and cure requesting thatthe court order FCA to resume paying Dean maintenance and cure because Dean's neck injuries had not reached maximum cure. Dean's motion was supported by a declaration ofDr. Aflatooni. The trial courttreated the pretrial motion as a motion for summary judgment. The trial court ruled that, viewing the facts in the lightmost favorable to the nonmovingparty-FCA-there

were genuine issues ofmaterial fact as to whether Dean's injuries had reached maximum cure. Thus, the trial court ruled that Dean was not entitled tojudgment

as a matter oflaw and did not orderFCAto resume paying Deanmaintenance and

cure. The parties proceeded to arbitration and the arbitrator found in favor of FCA. Dean and FCA filed a stipulatedjudgment in favor ofFCA contingent on 3Dean v. Fishing Co. of Alaska,No. 87407-7 Dean's appeal of the maintenance and cure issue. The stipulated judgment provided that the outcome ofthe current appeal would determine the prevailing party. The CourtofAppeals affirmedthetrial court.

### Dean v. 

### Fishing Co. of Alaska, Inc., 166 Wn. App. 893, 272 P.3d 268 (2012). The Court ofAppeals heldthat the trial court did not err by applying the summary judgment standard to Dean's motion to reinstate maintenance and cure. The Court of Appeals suggested that instead ofbringing a motion to reinstate maintenance and cure, Dean could have sought a temporary preliminary injunction under CR 65(a) or moved for an expedited evidentiary hearing under CR42(b). This court granted Dean's petition for review. 

### Dean v. 

### Fishing Co. of Alaska, Inc., 175 Wn.2d 1017, 290 P.3d 133 (2012). ISSUE Under general maritime law, when a shipowner stops paying maintenance and cure to an injured seaman, does a trial court err by applying the summary judgment standardto the seaman'smotionto reinstate maintenance and cure? ANALYSIS A. Jurisdiction Although federaljudicial power "extend[s]
... to all cases ofadmiralty and maritimejurisdiction," this courthas concurrentjurisdictionto adjudicate this case 4Dean v. Fishing Co. of Alaska,No. 87407-7 underthe "savingto suitors" clause. U.S. CoNST. art. III, § 2, cl. 1; 

### see 28 U.S.C. 

### § 1333(1) ("The district courts shall have original jurisdiction, exclusive of the courts ofthe States, of: (1) Any civil case ofadmiralty or maritimejurisdiction, 

### saving to suitors in all cases all other remedies to which they are otherwise entitled." (emphasis added)); 

### Endicott v. Icicle Seafoods, Inc., 167 Wn.2d 873, 878, 224 P.3d 761 (2010) ("The 'savingto suitors' clause gives plaintiffs the right to sue on maritime actions in state court." (citing

### Madruga v. Superior Court, 346 U.S. 556, 560-61, 74 S. Ct. 298, 98 L. Ed. 143 (1954))). B. StandardofReview The application of an incorrect legal standard is an error of law that we review de novo. 

### Jongeward v. BNSFRy. 

### Co., 174 Wn.2d 586, 592, 278 P.3d 157 (2012) (citing 

### State v. Breazeale, 144 Wn.2d 829, 837,31 P.3d 1155 (2001)). We also review de novo an order granting summary judgment. 

### Sheikh v. Choe, 156 Wn.2d 441, 447, 128 P.3d 574 (2006). Summaryjudgmentis appropriate if"there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter oflaw." CR 56(c). Because the issue presented in this case involves whether summary judgment was the correct legal standard to apply to Dean'smotiontoreinstate maintenance and cure, wereviewthis issuedenovo.



### 5Dean v. Fishing Co. of Alaska,No. 87407-7 C. Background Under general maritime law, a shipownerhas a duty to provide maintenance and cure to a seaman who "becomes ill or is injured while in the service ofthe ship." 

### Vella v. FordMotor Co., 421 U.S. 1, 3, 95 S. Ct. 1381, 43 L. Ed. 2d 682 (1975); 

### Clausen v. Icicle Seafoods, Inc., 174 Wn.2d 70, 76, 272 P.3d 827 (2012). "Maintenance" is a per diem living allowance for food and lodging comparable to whatthe seaman is entitledto while at sea; "cure" is payment ofmedical expenses incurredintreatingthe seaman'sinjuryor illness. 

### Calmar

### S.S. Corp. v. Taylor, 303 U.S. 525, 528, 58 S. Ct. 651, 82 L. Ed. 993 (1938); 

### Clausen, 174 Wn.2d at 76. The shipowner's duty to pay maintenance and cure "continues until the seaman . . . reaches the point ofmaximum medical recovery." 1 1 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 6-28, at 393 (4th ed. 2004) (citing 

### Farrell v. United States, 336 U.S. 511, 522-23, 69 S. Ct. 707, 93 L. Ed. 850 (1949)). "'Maximum medical cure' is reached when the seaman recovers from the injury, the condition permanently stabilizes or cannot be improved further." 

### McMillan v. TugJaneA. Bouchard, 885 F. Supp. 452,459 (E.D.N.Y. 1995). Maintenance and cure is an "ancient doctrine." 

### Farrell, 336 U.S. at 520-21;



### see also SCHOENBAUM, 

### supra, § 6-28, at 376 ("This duty first appears in the medieval sea codes and is undoubtedly of earlier origin."). A seaman's right to

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

### maintenance and cure was first recognized in the United States by Justice Story. See Harden v. Gordon, 11 F. Cas. 480 (C.C.D. Me. 1823) (No. 6,047); Reed v. Canfield, 20 F. Cas. 426 (C.C.D. Mass. 1832) (No. 11,641). Justice Story articulatedthe underlyingpolicyofmaintenance and cure as follows: Seamen are by the peculiarity oftheir lives liable to sudden sickness from change of climate, exposure to perils, and exhausting labour. They are generally poor and friendless, and acquire habits of gross indulgence, carelessness, and improvidence. Ifsome provision be not made for them in sickness at the expense ofthe ship, they must often in foreign ports suffer the accumulated evils ofdisease, and poverty, and sometimes perish from the want of suitable nourishment. Their common earnings in many instances are wholly inadequate to provide for the expenses ofsickness; and ifliable to be so applied, the great motives for good behaviour might be ordinarily taken away by pledging their future as well as past wages for the redemption ofthe debt.

. . On the other hand, ifthese expenses are a charge upon the ship, the interest ofthe ownerwillbe immediately connectedwiththat ofthe seamen. The master will watch over theirhealth with vigilance and fidelity. He will take the best methods, as well to prevent diseases, as to ensure a speedy recovery from them. He will never be tempted to abandon the sick to their forlorn fate; but his duty, combining withthe interest ofhis owner, will leadhim to succortheir distress, and shed a cheering kindness over the anxious hours of suffering and despondency. Beyond this, is the great public policy of preserving this important class ofcitizens for the commercial service andmaritime defence ofthe nation. Harden, 11 F. Cas. at483. The United States Supreme Court relied on Justice Story's early opinions when it definitively established a seaman's right to maintenance and cure in The

7Dean v. Fishing Co. of Alaska,No. 87407-7 

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

### In Taylor, the Court again referenced the "classic passage" written by Justice Story-quoted above-to lay out three primaryjustifications for maintenance and cure: (1) "the protection ofseamen," (2) "the inducement ofmasters and owners to protect the safety and health of seamen while in service," and (3) "the maintenance of a merchantmarine for the commercial service and maritime defense ofthe nationby inducing [sea]men to accept employment in an arduous and perilous service." 303 U.S. at 528. In subsequent cases, the Court emphasized that a shipowner's duty to pay maintenance and cure is '"broad,"' Vella, 421 U.S. at 4 (quoting Aguilar v. Standard Oil Co. ofNJ., 318 U.S. 724, 730, 63 S. Ct. 930, 87 L. 

### Ed. 1107 (1943)), and should be liberally interpreted "'forthe benefit and protection ofseamen who

are [the admiralty courts'] wards,"' Vaughan v. Atkinson, 369 U.S. 527, 531-32, 82 S. Ct. 997, 8 L. 

### Ed. 2d 88 (1962) (quoting Taylor, 303 U.S. at 529). "[T]he shipowner's liability for maintenance and cure [is] among 'the most pervasive' of all and [is] not to be defeated by restrictive distinctions nor 'narrowly confined."' Vaughan, 369 U.S. at 532 (quoting Aguilar, 318 U.S. at 735). In order to ensure that injured seamen were protected, the Vaughan Court instructed that "[w]hen there are ambiguities or doubts [relatedto maintenance and cure], they are resolved

2Supersededon othergrounds bystatute, JonesAct, 46 U.S.C. § 30104. 8Deanv. Fishing Co. of Alaska,No. 87407-7 

### in favor ofthe seaman." Id. 

### (citing Warren v. United States, 

### 340 U.S. 523, 71 S. Ct. 432, 95 L. Ed. 503 (1951)). The Court further explained that "the seaman's rightto maintenance and cure ...is so inclusive as to be relatively simple, and can be understood and administered without technical considerations. It 

### has few exceptions or conditions to stir contentions, cause delays, and invite litigations." Farrell, 

### 336U.S. at 516. A shipowner's duty to pay maintenance and cure is so broad that it arises regardless of the shipowner's fault or negligence or the seaman's contributory fault. Aguilar, 

### 318 U.S. at 730-31. There are very few defenses a shipowner can raise to avoidpayingmaintenance and cure. However, a shipowner does nothave a duty to pay maintenance and cure when a seaman is injured by his own willful misconduct, Warren, 

### 340 U.S. at 528, intentionally misrepresents facts about his medical history when applying to work, McCorpen v. Cent. GulfS.S. Corp., 

### 396 F.2d 547, 548 (5th Cir. 1968), or refuses to accept medical care offered by the shipowner, Oswaltv. Williamson Towing Co., 

### 488 F.2d 51,54 (5th Cir. 1974). D. Pretrialprocedureregardingmaintenance and cure We now turn to the issue presented in this case. That is, how should a trial court treat a seaman's pretrial motion to reinstate maintenance and cure after the shipowner-who initially paid maintenance and cure-cuts offpayments? Dean argues that the Vaughan 

### principle requires trial courts to apply a standard more 9Deanv. Fishing Co. of Alaska,No. 87407-7 favorable to the seaman than a summary judgment standard. FCA argues that summary judgment is the only mechanism under which a seaman can seek adjudication ofhis maintenance and cure rights prior to trial. We agree with Dean and conclude thatthe trial court erred in applying a summaryjudgment standardto Dean'smotionto reinstatemaintenance and cure. We begin our analysis bynotingthat a shipowner's dutyto paymaintenance and cure is "virtually automatic."

### Baucom v. Sisco Stevedoring, LLC, 506 F. Supp. 2d 1064, 1073 (S.D. Ala. 2007). A shipowner must pay maintenance and cure to

seamenwho prove, by apreponderance ofthe evidence, (1) theywere employed as seamen, (2) their injuries or illnesses occurred, manifested, or were aggravated while in the ship's service, (3) the wages to which they are entitled, and (4) expenditures for medicines, medical treatment, board, and lodging. 

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

### Johnson v. Cenac TowingInc., 468 F. Supp. 2d 815, 832 (E.D. La. 2006), 

### vacated

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

### West v. Midland Enters., Inc., 227 F.3d 613, 616 (6th Cir. 2000) (quoting

### Freeman v. ThunderBay Transp. Co., 735 F. Supp. 680, 681 (M.D. La. 1990)). After a seaman has proved his initial entitlement to maintenance and cure, the burden shifts to the shipowner to prove that maximum cure has been reached. 

### Tuyen Thanh Mai, 160 Wn. App. at 539; 

### see also SCHOENBAUM, 

### supra, § 10Deanv. Fishing Co. of Alaska,No. 87407-7 

### 6-33, at 394 (The shipowner "bears aheavy burden in deciding when to terminate maintenance and cure."). We further note that if the shipowner unilaterally decides to stop paying maintenance and cure to a seaman based on its determination that the seaman has reachedmaximum cure, the seamanmayreasserthis rights by bringing amotionto reinstate maintenance and cure. In such an instance, "itbecomes the [shipowner's] obligation to reinstate such payments." McMillan, 

### 885 F. Supp. at 468. "If

### the [shipowner] refuses to reinstate maintenance and cure, it bears the burden of establishing that it had a legitimate reason for so refusing." Id. 

### The shipowner can meet this burden by providing "unequivocal"3 

### evidence that the seaman has reached maximum cure. Johnson v. Marlin Drilling Co., 

### 893 F.2d 77, 79 (5th Cir. 1990) (citing Tullos v. Res. Drilling, Inc., 

### 750 F.2d 380, 388 (5th Cir. 1985)). Alternatively, the shipowner may move for an expedited trial under CR42(b).4 

### In

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

### 11Dean v. Fishing Co. of Alaska,No. 87407-7

an expedited trial, the shipowner would bear the same burden as it would at trial, i.e., the shipowner would have to prove by a preponderance ofthe evidence that the seamanhadreachedmaximumcure. FCA argues that the trial court properly applied a summary judgment standardto Dean's motion. We disagree. Summary disposition ofmaintenance and

cure claims is generally not appropriate. 2 ROBERT FORCE & MARTIN J. NORRIS, THE LAW OF SEAMAN § 26:43, at 26-101(5th ed. 2003). The extent ofa seaman's injuries and whether a seaman has reached maximum cure are factual questions, notlegal questions. See SCHOENBAUM, supra,§ 6-33, at393. Despite the general rule that a seaman's maintenance and cure claim should not be disposed ofon summaryjudgment, numerous federal district courts have used summary judgment to determine a seaman's initial entitlement to maintenance and cure.5 For example, ifa shipowner refuses to pay maintenance and cure to an injured seaman from the outset, the seaman may sue and bring a determination establishing seaman's entitlementto maintenance and cure, shipowner has burden to bring an evidentiary hearing to demonstrate the propriety of terminating or reducing payments). 5 See, e.g., Chaney v. Omega Protein, Inc., No. 09-7235, 2010 WL 1552449 (E.D. La. Apr. 15, 2010) (unpublished); Davis v. Icicle Seafoods, Inc., No. 07-1565BHS, 2008 WL 418008 (W.D. Wash. Feb. 13, 2008) (unpublished); Hale v. Excel! Marine Corp., No. 5:07-CV-102-R, 2008 WL 4443098 (W.D. Ky. Sept. 26, 2008) (unpublished); Loflin v. KirbyInlandMarine, LP, 568 F. Supp. 2d 754 (E.D. Tex. 2007); Buenbrazo v. OceanAlaska, LLC, No. C06-1347C, 2007 WL 7724765 (W.D. Wash. Feb. 28, 2007) (unpublished); Mabrey v. WizardFisheries, Inc., No. C05-1499L, 2007 WL 1556529 (W.D. Wash. May 24, 2007) (unpublished); McNeil v. Jantran, Inc., 258 F. Supp. 2d 926 (W.D. Ark. 2003); Freeman, 735 F. Supp. 680; Lancaster Towing, Inc. v. Davis, 681 F. Supp. 387 (N.D. Miss. 1988); George v. Hillman Transp. Co., 340 F. Supp. 296 (W.D. Pa. 1972); Hudspeth v. Atl. & GulfStevedores, Inc., 266 F. Supp. 937 (E.D. La. 1967); Claudio v. SinclairRefCo., 126 F. Supp. 154 (E.D.N.Y. 1954). 12Dean v. Fishing Co. of Alaska,No. 87407-7 motion for summaryjudgmentrequestingthe courtfind, as amatter oflaw, thatthe

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

move for summaryjudgment on the grounds that the seaman failed to meet his initialburdento provehewas employed as a seaman,7 he was injuredinthe service of the ship,8 and he is incurring expenses for medical treatment, board, and lodging.9 The shipowner may also askthe court to find, as a matter oflaw, that it does not have a duty to pay maintenance and cure because the shipowner has a valid defense. 10 A seaman's initial entitlement to maintenance and cure presents legalquestionsthatcanproperlyberesolved on summaryjudgment.

6 See, e.g., Chaney, 2010 WL 1552449, at *2 (denying seaman's summary judgment motion for maintenance and cure); Hale, 2008 WL 4443098, at *2 (granting seaman's summary judgment motion for maintenance and cure); Lancaster Towing, 681 F. Supp. at 389 (denying seaman's summary judgment motion for maintenance and cure); see also FORCE & NORRIS, supra,§ 26:55, at 26-131 ("The only recourse whichthe seaman [has] when [the shipowner fails to paymaintenance and cure] is by way ofalawsuitfor maintenance and cure."). 7 See, e.g., Buenbrazo, 2007 WL 7724765, at *1 (denying plaintiffs motion to compel maintenance and cure when there was a factual dispute about whether plaintiffwas a seaman or longshoreman). 8 See, e.g., Chaney, 2010 WL 1552449, at *1 (denying seaman's motion for summary judgmentbecause the seamandidnotprovide sufficientevidence thathe was injuredwhile inthe service ofthe vessel); Mabrey, 2007 WL 1556529, at *2 (denying seaman's motion to compel cure when there was conflicting evidencewhetherthe seamanwas injured while inthe service of the vessel). 9 See, e.g., Freeman, 735 F. Supp. at 682 (denying seaman's motion for summary judgment on maintenance and cure issue because, eventhough seaman would have beenentitled to maintenance and cure as a matter oflaw, the seaman failed to provide sufficient evidence of expenses incurred as aresult ofherinjuries). 10See, e.g., Davis, 2008 WL 418008, at *3 (denying plaintiffs motion for maintenance and cure where theparties disputed whether seaman forfeited his rightto maintenance and cure); Loftin, 568 F. Supp. 2d at 763-64 (denying seaman's motion to compel maintenance and cure where shipowner argued that seaman willfully concealed a preexisting medical condition); Lancaster Towing, 681 F. Supp. at 389 (denying seaman's motion for maintenance and cure because the court found that the seamanintentionally misrepresented a back condition); George, 13Dean v. Fishing Co. of Alaska,No. 87407-7 

### FCA's and the Court ofAppeals' reliance on 

### Buenbrazo v. Ocean Alaska, LLC, No. C06-1347C, 2007 WL 7724765 (W.D. Wash. Feb. 28, 2007) (unpublished) and 

### Mabrey v. Wizard Fisheries, Inc., No. C05-1499L, 2007 WL 1556529 (W.D. Wash. May 24, 2007) (unpublished) is misplacedhere becausethis

case involves reinstatement ofmaintenance and cure after termination, not initial entitlement. In those cases, the federal district court applied a summaryjudgment standard to the seaman's motion to compel maintenance and/or cure because, in those cases, the shipowners contested the seamen's initial entitlement to maintenance and cure. 

### Buenbrazo, 2007 WL 

### 7724765, at *2; 

### Mabrey, 2007 WL 

### 1556529, at *2. In 

### Buenbrazo, the shipowner challenged the plaintiffs status as a seaman; in 

### Mabrey, the shipowner challenged whether the seaman was injured in the service ofthe vessel. As outlined above, we agree that a court may apply the summaryjudgment standardto determine a seaman's initial entitlementto maintenance and cure. Butit does notnecessarily follow thatthe summaryjudgment standardmustbe appliedto

a seaman's motion to reinstate maintenance and cure. In fact, two federal district court cases that have ruled specifically on a seaman's motion to reinstate maintenance and cure (as opposed to a motion to compel initial payment of

340 F. Supp. at 303 (denying shipowner's motion for summary judgment to defeat seaman's claim for maintenance and cure where the shipowner argued inter aliathat statute oflimitations orlachesbarred seaman's claim). 

### 14Dean v. Fishing Co. of Alaska,No. 87407-7 maintenance and cure) concludethatthe summaryjudgmentstandard shouldnotbe applied. 

### See Gouma v. Trident Seafoods, Inc., No. C07-1309, 2008 WL 2020442 (W.D. Wash. Jan. 11, 2008) (unpublished); 

### Sefcikv. OceanPrideAlaska, Inc., 844 F. Supp. 1372 (D. Alaska 1993). In

### Sefcik, a seamanbrought a motionto reinstate maintenance and cure after the shipowner terminated payment based upon its finding that the seaman had reached maximum cure. 844 F. Supp. at 1373. The shipowner urged the district court to apply a summary judgment standard to the seaman's motion, but the district court refused. 

### Id. The district court stated, "An injured seaman seeking reinstatement of maintenance and cure payments which were terminated by his employer cannot be considered in the same procedural posture as a party seeking summary judgment." 

### Id. The district court held that the decision to terminate maintenance and cure must be unequivocal, and given the conflicting medical opinions providedbythe parties, the shipowner did notmeetthis standard.

### Id. The district court further reasonedthat all ambiguities relatingto maintenance and cure mustbe resolved in favor ofthe seaman andnotedthatthe seaman "clearlydid not file a motion for summaryjudgment." 

### Id. at 1374. On these grounds, the district courtgrantedthe seaman'smotionto reinstate maintenance andcure. In 

### Gouma, a seaman filed a motionto compel cure askingthe courtto order the shipowner to pay for a discogram/CT after the shipowner indicated that it 15Dean v. Fishing Co. of Alaska,No. 87407-7 

### would not pay for the procedure. 2008 WL 2020442, at *1. The shipowner refused to pay for the procedure because a physician conducting an independent medical examination had determined that the seaman had reached maximum cure and that the discogram/CT was unnecessary. Id. 

### Like in Sefcik, 

### the shipowner urged the district court to apply a summaryjudgment standard to the seaman's motion, but the district court refused. Gouma, 

### 2008 WL 2020442, at *2. In granting the seaman'smotion, ChiefJudge Pechmanreasoned, Plaintiffis entitled to a presumptive continuance ofmaintenance and cure payments. Even ifa summaryjudgment standard ofreview were to be applied in this context, disputed questions ofmaterial fact (e.g., the differing opinions of Plaintiffs and Defendants' physicians) would simply mean that Plaintiff would be entitled to continue to receive maintenance and cure until the matter was ultimately resolved at trial. The procedural model proposed by Defendants would mean that a vessel owner could escape maintenance and cure obligations at any time prior to trial simply by finding a physician who would pronounce the seaman at maximum medical cure. This Court is not prepared to depart from the [Vaughan] 

### standard of resolving all doubts concerning maintenance and cure in the seaman's favor to that extent. Defendants have citedno opinion from the Ninth Circuitorthe Supreme Court indicating that this historic doctrine has fallen to that level ofdisfavor. Similarly, Defendants may notunilaterally decide, based onthe opinion oftheir own physician, that a seaman has reached maximum medical cure. At the very least, it 

### violates the summary judgment standard which they themselves are championing-in the face of genuine disputes of material fact regarding the extent of Plaintiffs cure, Defendants are not entitled to summarily (and unilaterally) determine the question in their own favor. More significantly, Defendants' action appropriates to themselves the adjudicatory function of this Court-the issue of maximum cure is one of the 16Dean v. Fishing Co. of Alaska,No. 87407-7 

### ultimate issues before the Court in any maritime injury litigation, and no actionmaybe taken onitwithout an order ofthe court. ld. 

### at *2-3. Deanis inpreciselythe same position as the seameninSefcikand Gouma. In both Sefcik and Gouma, the shipowners had cutoffthe seamen's maintenance and

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

seamen inSefcikand Gouma, Deanwas forced to file amotionreassertinghis right to maintenance and cure. We agree with ChiefJudge Pechman that allowing a shipowner to stop paying maintenance and cure simply because the shipowner obtained a single medical opinion pronouncing the seaman's maximum cure is contrary to the Vaughan principle. By applying a summaryjudgment standard to Dean's motion, the trial court allowed FCA to terminate its duty to pay maintenance and cure simply because FCA had obtained a medical opinion from Dr. Williamson-Kirkland. The trial court's holding placed the adjudicatory power ofthe court in the hands ofFCA and shiftedthe burden ofproving maximum cure from FCA to Dean (to prove that he had not reached maximum cure). The trial court erredin applying a summaryjudgmentstandardto Dean'smotion. We hold that ifa shipowner stops paying maintenance and cure to a seaman because ithas determinedthatthe seamanhas reached maximum cure, atrial court

errs by applying a summaryjudgment standard to a seaman's motion to reinstate maintenance and cure. Instead, after a seaman makes such a motion, the trial court 17Dean v. Fishing Co. of Alaska, No. 87407-7 should order the shipowner to reinstate such payments unless the shipowner can provide unequivocal evidence that the seaman has reached maximum cure. Alternatively, ifthe shipowner wishes to terminate paying maintenance and cure, the shipowner could move for an expedited trial under CR42(b). At an expedited trial, the shipowner would have the burden to prove, by a preponderance ofthe evidence,thatthe seamanhadreachedmaximumcure. CONCLUSION We reverse the Court of Appeals and hold that the trial court erred in applying a summaryjudgment standardto Dean's motionto reinstate maintenance and cure. Dean asked this court to provide guidance on whether surveillance conducted by a shipowner is protected from discovery. But because the parties have agreedto forgo atrial de novo in this matter, this discovery issue is moot and

we will not address it.

18Dean v. Fishing Co. of Alaska,No. 87407-7

WE CONCUR:

19