# Opposition Brief — Polmar Fisheries, Inc. v. Hurlburt > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1556%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1999 - **Citation:** 526 U.S. 1116 ## Text F I No. 98-1611 Supreme Court, U.S Se eS APR 14 1999 CLERK IN THE Supreme Court of the United States October Term, 1998 POLMAR FISHERIES, INC., Petitioner, VS. SUSAN VIOLA HURLBURT, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit RESPONSE TO PETITION FOR WRIT OF CERTIORARI UNIVERSITY PLACE LAW OFFICES THOMAS C. EVANS Counsel of Record 4705 —15™ Avenue N.E. Seattle, WA 98105 (206) 527-8008 Attorney for Respondent Susan Viola Hurlburt aBCD Legal Printers. Sesttle. Washington een a ne a a il RESPONSE TO QUESTIONS PRESENTED FOR REVIEW In spite of Petitioner listing several "questions," there is only one question in this case: Is there a sufficient fact basis for the trial court to find Respondent Susan Viola Hurlburt was a Jones Act/General Maritime Law seaman as of the time and place of her back injury, that is, was there a sufficient fact basis for the trial court to find that the vessel F/V NORTHLAND was a vessel in navigation as of the time and place of injury? Petitioner's question #4, "Can the question of seaman status be taken from the trier of fact?" proposes an entirely new standard of review for the issue of vessel in navigation. It would require reversing Roper v. United States, 368 U.S. 20, 22-23 (1961), in that Petitioner seems to ask for, and thus claim, the "question of seaman status" should be taken from the trial court any time a "reasonable person might conclude that the injured workman was not a seaman." Petitioner really proposes a new form of summary judgment for seaman's status issues. il RESPONSE TO LIST OF PARTIES Respondent accepts Petitioner's statement with respect to List of Parties. RESPONSE TO RULE 29.1 STATEMENT OF RELATED CORPORATIONS Respondent accepts Petitioner's statement with respect to Related Corporations, excepting that to the extent Mark Maring, a single individual, is the pnncipal behind both corporations, Polmar Fisheries and Northland Fishenes, Inc. are the same entities. Tk Ne Pa irc Rl INT RMT ll iv TABLE OF CONTENTS Page RESPONSE TO QUESTIONS PRESENTED FOR I WR batt iidahindschstbeisieg adie eich tists : ry 7 2 2 ui 3 ae 7 : — " ° * . SGN SE SABES a PS ota S ipa tag as ae ai Na als nee ee: 15 Petitioner then argues that the decision of the Court of Appeals is "inconsistent" with these requirements. Again, Petitioner argues facts that are thoroughly reviewed, including issues about cost and purpose of the retrofit, how extensive the retrofit was and whether the vessel could be put to sea — again, all fact issues thoroughly explored by the trial court, a record found by the Court of Appeals to be sufficient for purposes of the District Court deciding the way it did. Hurlburt's case is one that does not raise new issues regarding seamanship status. If there ever was any doubt, and there wasn't, all doubts were erased by learning what Hurlburt ended up doing on the vessel. Hurlburt lived aboard the vessel from early May 1995 and continued on with the vessel, albeit with a bad back, after the vessel departed for the fishing grounds. If, as Petitioner alleges, Hurlburt was not a Jones Act/General Maritime Law seaman, why did she continue on with the vessel, never leaving the vessel, always living and working full-time aboard the vessel, and departing with the vessel when it went to the fishing grounds where she served as a cook? Unlike what Petitioner claims, this is not a case where an individual had only a transitory connection with a vessel and had no connection when it departed for sea, as is often the case when seamanship is challenged. The navigability of the F/'V NORTHLAND was hotly contested at trial. Substantial admissions by 16 Polmar/Northland at trial clearly indicated the vessel was not a "dead ship," as Petitioner seems to allege. When compared to initial costs many years ago, the value of the new refrigeration system seemed extensive proportionately, but it was only a small percentage of the overall insured value of the vessel. The so-called "substantial portions" of the ship's structure, which were demolished and rebuilt, consisted of the freezer area and, to a much lesser extent, the movement of decks. The impact regarding the propulsion system and engines was, again, only marginal. While there may have been work to the fuel oil vents, there was no redoing of the engines, new engines, change in engines, change in ship's electrical, etc. Representatives of Polmar/Northland testified, in essence, that with a few minor measures, the F/V NORTHLAND could have immediately set for sea in early May 1995. The stability letter discussed earlier simply refers to a revision in stability required any time a change in weight distribution on the vessel is effected. Contrary to Petitioner's assertion, the Congressional purpose of the Jones Act wouid be frustrated if this Court were to enter into these proceedings on the grounds alleged by Petitioner. Petitioner seems to argue for a standard that would make any persons working aboard vessels that were tied up at docks, for whatever reason, incapable of becoming Jones Act/General Maritime Law seaman. 17 Finally, and of equal importance, is the unchallenged fact that Petitioner never treated Hurlburt as if she were a longshore worker. Finding of Fact 17, never challenged and never appealed by Petitioner, specifically found that both Polmar and Northland, individually or collectively, in bad faith failed to pay Hurlburt's medical expenses. Indeed, the record demonstrates and the findings confirm that Hurlburt was deprived of medical cure and was forced to suffer pain, “denied pain medications," because these entities were not paying anything on behalf of Hurlburt, no matter how denominated — Jones Act seaman, General Maritime Law or Longshore Harbor Workers Act. The Court specifically found: "The Court finds that Defendant's conduct in this regard [denial of medical cure and maintenance] was outrageous and intentional." Finding of Fact 17, page 14, A- 14, Petitioner's Brief. Ill. THERE IS NO NEED TO CLARIFY THE TRIER OF FACT'S OBLIGATION WITH RESPECT TO MAKING A DETERMINATION WHETHER THE CLAIMANT IS COVERED UNDER THE JONES ACT OR THE LONGSHORE ACT. A. Standard of Review. Petitioner's allegation that the Court of Appeals "applied an improper legal standard to the question of seaman status" is completely unfounded. The Court applied the correct standard as set forth in Roper v. United States, 368 U.S. 20, 22-23 (1961), a standard setting 18 forth that a question of fact shall be reviewed by the appellate courts for clear error. That is exactly what the Court of Appeals did in this case, finding substantial evidence in the record to support the trial court's decision. There is no "question of law" " B. The Court Of Appeals Did Not Decide A Federal Question In Any Way That Conflicts With The Applicable Decisions Of This Court. As pointed out above, subject to de novo review." the Court of Appeals did not conclude Hurlburt was a seaman merely because she was aboard a vessel in navigation. The two-element test of Chandras v. Latsis, supra, to the effect that an employee's duties must contribute to the function of the vessel or accomplishment of its mission and the employee must have a connection to a vessel in navigation, was thoroughly analyzed by the Court of Appeals and thoroughly tried by the trial court. Hurlburt was deemed to have been providing services contributing to the function of the vessel and to have had a permanent connection to the vessel, having lived and worked aboard the vessel throughout all time periods relevant to this issue. The totality of these circumstances were analyzed in detail in both the trial court and the Court of Appeals. 19 IV. THE COURT OF APPEALS DID NOT ACT CONTRARY TO DECISIONS OF THE SUPREME COURT AS TO THE ROLE OF THE TRIER OF FACT WITH RESPECT TO DETERMINING THE STATUS OF MARITIME WORKERS. A. The Record Contains Substantial Evidence That Hurlburt Was A Seaman As Of The Time And Place Of Her Injury. Petitioner's briefing on the above issue is exceptionally vague and fails to point out that the only time that counts is the time of the actual injury, May 17, 1995. It is not, as Petitioner alleges, a requirement that Hurlburt show that she was aboard the vessel as a seaman during the entire "retrofit." Contrary to Petitioner's allegation that Hurlburt was discharged as a member of the crew in March 1995, the trial court found that Hurlburt was under contract on the May 17, 1995 date of injury as a cook aboard the vessel. The contract status in March 1995 is irrelevant, even though, as Hurlburt proved at trial, she was then under a previous contract as a crewmember for the vessel. Hurlburt did not come aboard the vessel for purposes of acting as a longshore worker; indeed, just as Finding of Fact 9 points out, when defendants attempted to get Hurlburt to perform longshore-type work such as hammering, etc., Hurlburt left the vessel until 20 Polmar/Northland agents Robert Ortman and Neil Anderson asked her to come back to cook for the salmon season. Petitioner's claim, Brief, page 29, to the effect that "Mrs. Hurlburt's work during the retrofit was not covered by crew contract or other written agreement" is directly contradicted by unchallenged Finding of Fact 10, Trial Court Decision, page A-12, which specifically found there was a signed contract hiring her as first cook. It is true that the contract was not signed until June 10, 1995, however, the previous contract in the exact same form (only the position changed) covered the 120-day period prior to the June 10 contract. See Finding of Fact 16, also unchallenged, "The contracts signed by plaintiff all indicated that they were for at least 120 days’ duration..." Trial Court Decision, page A-14. While paychecks may have been issued by Polmar, this was significant to the Court of Appeals only to determine which of the two defendants, under circumstances where only one defendant could be responsible, would be held liable for the Jones Act remedies. B. Nothing In The Court of Appeals’ Decision Suggests That The Court of Appeals Ruled That The Question Of Seamanship Status Should Be Withdrawn From The Trier Of Fact. For reasons that are not self- evident, Petitioner argues: "The Court of Appeals erred in withdrawing the question of seaman status from the trier of 21 fact." Yet, nothing in any of the Court of Appeals’ decision Suggests in any way that it held, or withdrew, the question of seamanship status from the trier of fact. To the contrary, the Court of Appeals reviewed the record and found a substantial basis for the trier of fact to make the decision it did. Again, the Court of Appeals specifically held: "... Whether a vessel is in navigation is a question of fact, which we review for clear error. See Roper v. United States, 368 U.S. 20, 22-23 (1961)." Decision of the Court of Appeals, page A-3. Again, the Court of Appeals stated: "While reasonable minds might differ, we cannot say that the District Court's finding that she was in navigation was clearly erroneous." At page A-4. Petitioner's "illustration" of how the trier of fact "might have been misled," Brief, page 33, is puzzling and suggests facts and issues unrelated to any issue in this case. Petitioner suggests this Court consider "what if" Hurlburt had worked for some other company, "such as a pipe fitting or metal working contractor,” living off the vessel, working for a different employer, having no connection with the vessel whatsoever. Or, Petitioner urges that the Court consider "what if" Hurlburt had been hired by a union hiring hall. These are hypotheticals completely unrelated to this case and this entire portion of Petitioner's briefing should be disregarded as irrelevant and supercilious. 22 If anything, the fact that the trial court found Polmar and Northland to be one and the same proves the tral court considered all of the evidence equally with respect to-each defendant. The tnal court did not draw any distinction between Polmar and Northland when it came to facts in the record regarding Jones Act/General Maritime Law status. The trial court thoroughly analyzed these issues with respect to both defendants. Nothing would be served in a remand to the trial court or any further analysis. Moreover, based on this record, it is clear that even if Petitioner had an argument for application of the Longshore Act, that Act itself discloses that Hurlburt would be entitled to Jones Act/General Maritime Law remedies because of how horribly Polmar has mishandled and failed to pay Hurlburt any benefits. The Act, at 33 U.S.C. §905A-B, subpart (a), states, in pertinent part: (a) Employer Liability; failure of employer to secure payment of compensation. The liability of an employer proscribed in Section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee...except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under the chapter, or to 23 maintain an action at law or in admiralty for damages on account of such injury or death... As stated above, Polmar did not challenge Finding of Fact 17, "Defendants have consistently, arbitrarily and in bad faith failed to pay the required maintenance and cure and thus have caused plaintiff to be evicted from her home, denied pain medications and to suffer the humiliation of collection proceedings against her. The Court finds the defendant's conduct in this regard was outrageous and intentional." Page A-14. And, indeed, Polmar even admits that it stopped paying compensation, including payment of compensation under the Longshore Act. Specifically, at Petitioner's Brief, page 35, Petitioner states: ..When Mrs. Hurlburt reported her back injury to Polmar, Polmar reported it to the longshore compensation carrier. Compensation benefits were paid until Mrs. Hurlburt's attommey wrote a letter demanding that she be compensated as a seaman rather than a longshoreman. In other words, even though Polmar now claims and, according to its brief, believes Hurlburt was a longshoreman, Polmar failed to pay any benefits, blaming its insurer, and allowed Mrs. Hurlburt to be denied medical cure, including pain medications. It is evident that Polmar knew of its duty and failed to follow through. How, now, Polmar can argue 24 that Hurlburt was longshore and acknowledge, by way of failure to appeal, a finding of outrageous conduct and denial of benefits, is unexplained. The Act makes it very clear that Hurlburt was entitled to admiralty remedies even if she was longshore under circumstances where benefits were denied, as is admitted in this case. This, alone, negates any argument of Petitioner to the extent that Petitioner has any valid argument, at all, that Hurlburt was a longshoreman. Vv. THIS COURT SHOULD NOT ACCEPT REVIEW OF THIS MATTER, AND NOTHING IN THESE PROCEEDINGS WOULD ASSIST MARITIME EMPLOYERS IN PREDICTING WHO WOULD BE COVERED BY THE LONGSHORE ACT. Incredibly, Petitioner argues that which form of insurance a defendant purchases should determine the status of the claimant! Petitioner argues, Brief, page 34, that, because Northland claims to have obtained standard protection and indemnity insurance to cover seaman injuries and Polmar obtained on-shore coverage, and the Court of Appeals held Polmar liable, the Court should correspondingly find that Hurlburt was not a seaman! There is no law, no statute and no authority for this proposition. Further, it is disingenuous for Petitioner to suggest this argument when it did not provide longshore remedies to Hurlburt and let her suffer in pain for want of medication and cure. Again, see a Fs § p g ri 2 &. Fs f ; H e F | i % f 3 & a * 25 Finding of Fact 17, finding that Polmar's and Northland's actions were outrageous and had the effect of Hurlburt not havimg pain medications and being driven out of her home. If this Court was to accept Petitioner's argument, this Court would be rewriting Congressional law on a basis that has no support statutorily or in the common law. Petitioner also substantially and materially misstates the record when it claims "Northland Fisheries...observed strictly at all times the requirements of State law pertaining to observance of corporate formalities, separation of assets, adequacy of capitalization, financial responsibilities and other requirements for preserving their corporate form." Brief, page 35. In fact, the record indicates exactly the opposite. The record discloses that a single individual, Mark Maring, was the corporate embodiment for both Polmar and Northland. Mr. Maring constituted every officer and the entirety of the Board of Directors for Polmar Corporation. At the same time, he was a member of the Board of Directors and the main officer for Northland Corporation. Northland and Polmar commingled all of their assets involved in this case. Indeed, they shared the same telephone number, had the same address, were physically located in the same place, used the same personnel, were run by the same individual and were so bound up in each other that they were indistinguishable. Thus, it strains credulity and raises questions of fairness for Petitioner 26 to state, as fact, what the record so clearly and unequivocally demonstrates to the contrary. CONCLUSION This Petitioner has so substantially misstated the record that some of its fact allegations raise questions of fairness with respect to the Court considering its petition. Much of what Polmar urges as "fact" is belied by a simple reading of the trial court's decision, the Court of Appeals' review of that decision and the unchallenged findings of fact entered by the trial court, including the unchallenged finding of fact that Polmar treated Hurlburt outrageously in its denial of medical benefits, a denial which makes Polmar’s claim that Hurlburt is a longshore worker, covered by longshore benefits, the epitome of inconsistency. There is nothing significant in this case with respect to raising issues that should cause this Court to reconsider any of its law on matters of seamanship status. There is no confusion, as Petitioner alleges, with respect to the role of the tier of fact as demonstrated by the actions of the Court of Appeals, which correctly reviewed the record to determine whether there was clear error based on the record and the Court's decision. To grant Petitioner's petition would tum the process of reviewing the matter for clear error on its head and would create a new standard that is wholly inconsistent with the cases cited by 27 Petitioner. In bringing this petition, Petitioner has again succeeded in delaying and denying Hurlburt any remedy, or the benefits of law, whether as a Jones Act seaman or longshoreman in that it does nothing for Hurlburt other than prolong litigation to delay the inevitable. The petition should be denied and defendant Polmar should face the day when it is made responsible for its inconsistent and largely reprehensible actions. Respectfully submitted on this 12" day of April, 1999. UNIVERSITY PLACE LAW OFFICES Thomas C. Evans Attorney for Respondent Hurlburt TCE/ab Hurlburt\usscresp --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1556%3A2. Public record. Not legal advice.