JEREMY GIBSON, Appellant.
AMERICAN CONSTRUCTION COMPANY, INC., a Washington corporation, Respondent.
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),
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
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 this
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.
Thus, we reverse the superior court's summary judgment
dismissal order of Gibson's Jones Act claims, and remand
for further proceedings consistent with this opinion.
August 2013, American Construction Company, Inc. (American),
employed Gibson as a mechanic in its marine construction
department. Gibson fell through a hatch while working on a
crane barge moored at American's dock. He was treated for
head, back, neck, arm, and leg injuries. Gibson continued
to receive medical treatment over the next nine months and
received medical payments from American.
2014, Gibson quit working and filed a claim 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
December 2015, the parties agreed 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. The parties agreed that
Gibson contended that he suffered a 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 discharged its liability for the LHWCA claim.
Department's district director approved the agreed
settlement and signed a final compensation order in December
2015, closing Gibson's LHWCA claim. The compensation
order 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 considered
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:
1. That the claimant alleges accidental injury arising out of
and in the course of employment with the employer on or about
2. That liability of the employer for compensation under the
above cited Act was insured by the American Longshore Mutual
3. The parties have agreed to settle the claim as outlined in
the attached settlement agreement.
4. The District Director, pursuant to § 8(i) of the
Longshore and Harbor Workers' Compensation Act and 20 CFR
702.243,  finds the settlement adequate and not
procured by duress.
Pursuant to Section 8(i) of the Longshore and Harbor
Workers' Compensation Act, the District Director having
reviewed the attached agreement and stipulation by and
between the interested parties hereby approves the agreed
settlement. This approval effects a final disposition of the
claim, discharging the liability of the employer and
insurance carrier in accordance with the terms of the
settlement. The employer and insurance carrier are hereby
ordered to pay all amounts due.
Clerk's Papers at 41.
March 2016, Gibson filed a Jones Act complaint against
American for negligence, unseaworthiness, and vessel owner
negligence for his 2013 injuries. In his complaint, he
alleged that he was both a sea-based and land-based maritime
worker. American filed a CR 12(b)(6) motion to dismiss based
on failure to state a claim upon which relief can be granted
and submitted declarations. American argued that the LHWCA
compensation order precluded Gibson from bringing a Jones Act
claim and asserted election of remedies, equitable estoppel,
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. The superior court denied the motion to
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.
argues that the trial court erred in dismissing his Jones Act
claims because (1) under Gizoni, the issue of his
maritime worker status, non-seaman or seaman, was never
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 claims, 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-seaman
was never adjudicated under the LHWCA and the compensation
order did not expressly resolve this 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.
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, but there is no hypothetical set of facts
that could conceivably be raised by the complaint to support
a legally sufficient claim." Worthington 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), but
"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 outside 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
the superior court considered facts beyond those stated in
the complaint, including American's declarations.
Therefore, we treat the superior court's dismissal order