[Copyrighted Material Omitted]
Superior Court County: Pierce. Superior Court Cause No: 05-2-09340-0. Date filed in Superior Court: June 25, 2012. Superior Court Judge Signing: Beverly G. Grant.
Robert W. Ferguson, Attorney General, and Patricia D. Todd and John C. Dittman, Assistants, for appellants.
Karl Eric Dickman (of E. Dickman Law Firm), for respondent.
AUTHOR: Dwyer, J. We concur: Verellen, J., Schindler, J.
[180 Wn.App. 214] ¶ 1 Generally, when a plaintiff brings a maritime claim in state court pursuant to the " saving to suitors" clause, article I, section 21 of the Washington Constitution  establishes the parties' rights to a jury trial. [180 Wn.App. 215] That constitutional provision, however, does not grant such a right to the State of Washington, the party against whom the claim at issue in this case was asserted.
¶ 2 Plaintiff Scott Maziar initially requested a jury trial. He later moved to strike his jury request, contending that the jury trial right was inapplicable to his cause of action. The State opposed this motion, arguing that Maziar was wrong regarding the application of a state law jury right to his maritime cause of action. The State further alleged that it possessed the right to a jury trial in this matter, premising its assertion on article I, section 21 and RCW 4.40.060 and 4.44.090. Although the State was correct that article I, section 21 applied to Maziar's cause of action, conferring upon him such a right, it was incorrect in contending that either the state constitution or the cited statutes confer upon it such a right. Because the State did not cite to the trial court applicable authority establishing its right to a jury trial in this matter, the trial court did not err by striking the jury upon Maziar's request.
¶ 3 With regard to further issues raised herein, we hold that the trial court did not err either by declining to award Maziar prejudgment interest on his damages recovery or by finding that Maziar failed to mitigate his damages. Accordingly, we affirm the judgment.
¶ 4 Maziar was employed by the State Department of Corrections (DOC) as a correctional officer at the McNeil Island Corrections Center. On January 16, 2003, at approximately 10:40 p.m., after having finished his shift, Maziar boarded the DOC ferry from McNeil Island to Steilacoom. Maziar sat down on a bench, put his feet up on a loose chair, and closed his eyes. Thereafter, the captain of the ferry [180 Wn.App. 216] pulled the chair out from under Maziar's feet, causing Maziar to fall off the bench. Maziar sustained injuries to his back, left ankle, knee, and left shoulder.
¶ 5 Maziar was unable to return to work as a correctional officer. From March 2003 through August 2003, Maziar worked in DOC's records division. In November 2003, the State offered Maziar a position in the mailroom at McNeil Island. Maziar's physician, Dr. Stephen Settle, did not believe that Maziar could perform that job due to his mistaken belief that ferry transportation required passengers to wear seatbelts. With respect to the mailroom position itself, Dr. Settle opined that " [t]he actual job duties appear appropriate." Nonetheless, Maziar believed that he would not have been able to perform the mailroom job. Maziar stated that he would not have taken the mailroom position because,
[I]t's a permanent position that was only three or four people. There was heavy lifting in that job. I watched them as I sat down there as an officer. They do lift very large bags. There is tedious amounts of sorting. The three people that I saw there had been there over 20 years, and there were no positions that I could see that were permanent at any time while I worked there at McNeil Island. I didn't see any permanency there.
¶ 6 On June 30, 2005, Maziar filed a general maritime negligence claim against DOC, seeking compensation for the injuries he sustained when the ferry captain removed the chair. At that time, Maziar requested that his case be tried to a jury. On February 22, 2008, the trial court granted a motion for summary judgment brought by DOC, dismissing the lawsuit. Maziar appealed, and on August 25, 2009, Division Two reversed the trial court's ruling. Maziar v. Dep't of Corr., 151 Wn.App. 850, 216 P.3d 430 (2009) ( Maziar I).
¶ 7 On September 15, 2011, Maziar, relying on the Washington Supreme Court's recent opinion in Endicott v. Icicle [180 Wn.App. 217] Seafoods, Inc., 167 Wn.2d 873, 224 P.3d 761 (2010), moved to strike the jury request. DOC opposed the motion. The trial court granted the motion and the parties tried the case to the bench.
¶ 8 The trial court found in favor of Maziar and awarded $572,251.50 for pain and suffering and loss of enjoyment of life. However, the trial court found that Maziar had failed to mitigate his damages because " he did not attempt" the mailroom position " even for 10 or 15 minutes." Hence, the trial court awarded lost wages for only the periods of January to February 2003 and September to November 2003, for a total of $12,487.50. In total, the trial court awarded to Maziar $585,000.00  in damages. The trial court declined to award prejudgment interest on the damage amount.
¶ 9 DOC appeals from the judgment, assigning error to the trial court's order granting the motion to strike the jury. Maziar cross-appeals, challenging both the trial court's ruling that he failed to mitigate his damages and its decision not to award prejudgment interest.
¶ 10 DOC contends that the trial court erred by striking the jury and conducting a bench trial on Maziar's claim. This is so, it asserts, because the Washington Constitution and two state statutes guarantee to it the right to trial by jury in civil actions, including maritime cases. We agree that the right to a jury trial generally applies to maritime actions. We do not agree that DOC established that it possesses such a right.
[180 Wn.App. 218] A
¶ 11 Maritime causes of action are exclusively within the realm of federal law. Maziar I, 151 Wn.App. at 854. Nonetheless, an in personam maritime claim may be brought in state court pursuant to the " saving to suitors" clause of 28 U.S.C. § 1333(1). Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 445, 121 S.Ct. 993, 148 L.Ed.2d 931 (2001). This statute states, in relevant part, " The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." 28 U.S.C. § 1333.
¶ 12 Generally, state courts deciding a case brought pursuant to the " saving to suitors" clause must apply substantive federal maritime law. Endicott, 167 Wn.2d at 879. However,
a state court may " 'adopt such remedies, and ... attach to them such incidents, as it sees fit' so long as it does not attempt to make changes in the 'substantive maritime law.'" Madruga v. Superior Court of Cal., County of San Diego, 346 U.S. 556, 561[, 74 S.Ct. 298, 98 L.Ed. 290] (1954) (quoting Red Cross Line [ v. Atlantic Fruit Co., 264 U.S. 109,] 124[, 44 S.Ct. 274, 68 L.Ed. 582 (1924)]).That proviso is violated when the state remedy " works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations." Southern Pacific Co. v. Jensen, 244 U.S. 205, 216[, 37 S.Ct. 524, 61 L.Ed. 1086] (1917).
Am. Dredging Co. v. Miller, 510 U.S. 443, 447, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994) (first alteration in original).
¶ 13 Although, historically, jury trials were not available in admiralty suits, nothing in federal maritime law forbids the use of a jury. Fitzgerald v. U.S. Lines Co., 374 U.S. 16, 20, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963). [180 Wn.App. 219] Instead, the possibility of trial by jury is one of the " remedies" saved to suitors by 28 U.S.C. § 1333. Lewis, 531 U.S. at 454-55 (" Trial by jury is an obvious, but not exclusive, example of the remedies available to suitors." ). As such, whether a party possesses the right to trial by jury in a maritime action is a question of state law. Linton v. Great Lakes Dredge & Dock Co., 964 F.2d 1480, 1487 (5th Cir. 1992). Thus, whether the parties in this case have the right to a jury trial is a question to be answered by application of Washington law.
¶ 14 Pursuant to the Washington Constitution, the right to a jury trial generally exists for common law actions but not for equitable actions. Bird v. Best Plumbing Grp., LLC, 175 Wn.2d 756, 769, 287 P.3d 551 (2012). However, maritime actions are neither legal nor equitable. Waring v. Clarke, 46 U.S. (5 How.) 441, 460, 12 L.Ed. 226 (1847); Phelps v. S.S. City of Panama, 1 Wash. Terr. 518, 536 (1877) (" The constitution recognizes, in the language it employs, a triple distribution of jurisdiction into law, equity and admiralty. A suit in one of these jurisdictions is not a suit in another." (citation omitted)). Accordingly, we undertake a historical inquiry to determine whether there is a constitutional right to a jury in a maritime suit:
[Washington courts] have long interpreted article I, section 21 as guaranteeing those rights to trial by jury that existed at the time of the constitution's adoption in 1889. Brown v. Safeway Stores, Inc., 94 Wn.2d 359, 365, 617 P.2d 704 (1980). Under this historical approach, " the court examines (1) whether the cause of action is one to which the right to a jury trial applied in 1889, and (2) the scope of the right to a ...