d am iii-det . . _;`z l_r§_ sara ':r;-' waterman ZfiiB UCT 22 hit 8= 35 n r‘ ;. € §:_. !N THE COUR`E' OF APPEALS OF THE STATE OF WASH|NGTON ROYAE_ CARlBBEAN CRU|SES LTD., a Liberian Corporation, NO. 76275»3»1 D|ViSlON ONE Appefiant, V. ) ) ) ) ) l SWEDiSH HEALTH SERVICES, a ) Washington Corporation d/b/a ) SWEDlSH NlEDiCAL CENTER; ) SEATTE_E RAD|OLOGESTS, a ) Professional Corporation; THE ) POLYCE_|N|C, a Protessionai ) Corporation; FREDERLCK A. iV|Al\El\E, ) lVl.D.; PEGGY D. HEADSTROM, M.D.; ) and K\’UNG Hl HAN, Ni.D., ) ) ) UNPUBL|SHED OPENION Respondents. FiLED: October 22, 2018

ScHlNDLER, J. -- in 2009, Jacqueline Atmonte fiied a lawsuit against Royal Caribbean Cruises Ltd. (RCCL). Almonte aileged RCCL provided inadequate medicai care and asserted claims under federal maritime an for unseaworthiness negligence under the Jones Act, 46 U.S.C. § 30104, and maintenance and cure. in 2014, RCCL settled the lawsuit for $700,000. Almonte released ali claims against RCCE_ and medical care providers in May 2015, RCCL filed an indemnity and contribution action under federal maritime an and state law against Swedisn Health Services, the Poiyclinic, Dr. Peggy Headstrom and Dr. Kyung Han, and Seattle Radiologists and Dr. NO. 76275-3-|/2 Frederick Niann. We affirm summary judgment dismissal of the indemnity and contribution iawsuit.

BACKGROUND AND PROCEDURAL i-iiSTORY lVledica| Care .iacqueline Alrnonte is a Dorninican Republic citizen in 2007, Almonte worked as a crewmember aboard the Roya| Caribbean Cruises Ltd. (RCCL) cruise ship Serenade of the Seas. ln Ju|y 2907, Airnonte saw the ship doctor for “severe abdominal pain.” When the ship docked in Juneau, Alaska, the ship doctor referred Aimonte to Vailey Medicai Care. On August 16, Vai|ey |Viedica| Care diagnosed Almonte with “an acute peptic ulcer” and prescribed medication Ai‘ter Alrnonte returned to work aboard the ship, her symptoms got worse. On Septernber i, a ship doctor examined Almonte and found her “not fit for duty." RCCL case coordinator Tania Arroyo1 worked in the crew medical department in N!iarni, Fiorida. Arroyo made arrangements for Airnonte to leave the ship and go to the Sitka Cornmunity Hospital Emergency Department. The hospitai admitted Almonte on Septeniber 3. Dr. Robert Hunter examined Aimonte and ordered a CAT2 scan. According to Dr. Hunter, the CAT scan showed “Crohn's disease with an inflammatory obstruction of the terminal ilium, fistu!as and free fiuid in the pelvis.” Dr. Hunter treated Airnonte for Crohn’s disease and prescribed steroids. Dr. Hunter discharged Aimonte on Septernber 9. in the discharge instiuctions, Dr. l-iunter refers Aimorite to gastroenteroiogist Dr. Peggy Headstrorn at the Poiyciinic in Seattie

i Tania Arroyo subsequently changed her name to Tariia Rivera. For clarity, we refer to her as Tania Arroyo throughout this opinion.

2 Computerized axial tomography.

NO. 76275-3-|/3 and directs Almonte to call the Poiyclinic on Septen'iber 10 to make an appointment RCCL paid for Almonte to fiy to Seattle and stay in a hotel.

At the request of RCCL, on September 10, 2007, AXA Assistance USA taxed the Sitka Community l-iospital discharge summary and a “ietter of Guarantee of Payment” to the “Po|y Clinic --- Dr. Peggy Headstrorn.” The September 10 AXA “l_etter of Confirmation of Benefits Nledical Services” confirmed coverage for A!monte and reimbursement for reasonable charges as “approved by AXA Assistance USA.”

Your facility will be reimbursed reasonabie and customary charges as determined by geographic location or by prearranged contractual assignments for emergency treatment which is medically necessary and approved by AXA Assistance USA. Coveraqe is subject to g|i terms. conditions, limitations and exclusions of the patient’s policy.['°‘] Dr. l-leadstrom examined Aimonte on Septernber 10. Dr. Headstrom notes: The report l have from that {Sitka] hospitalization is not detailed Apparentiy she did have a CAT scan that showed some ileal abnormalities, and she was placed on prednisone and Asacol for the last several days. i do not know the results of any other iaboratory testing.

Almonte was admitted to Swedish Nledical Center for diagnostic testing. Dr. Headstrom ordered a “CAT scan with CT[“I enteropathy” and a coionoscopy. Dr. Frederick i\!lann of Seattie Radiologists reviewed the CT scan and found it was “[n]egative" for gastrointestinal disease On September 12, Polyclinic physician Dr. Kyi,ing Han performed the colonoscopy. The results were “noimal.”

Swedish l\/ledical Center physician Dr. lVlari< Kohrnetschei discharged Almonte on September ‘l3. `l`he discharge states the “CAT scan with CT enteropathy [ls] essentially negative No evidence of that described frorn films done in Sitl<a, Aiaska.”

3 Emphasis in original Computed tomography.

NO. 76275-3-|/4 The discharge diagnosis is “possible gastroparesis, still With some pending Workup.”

Dr. Kohmetscher prescribed medication and noted Almonte is “planning to emigrate back to the Dorninican Republic." Dr. Kohmetscher suggests Almonte “follow up [with] Dr. |-ieadstrom iVlonday to look at finalized biopsy results." Almonte saw Dr. Headstrom on September 17 for a foilow-up appointment.

Almonte told Dr. Headstrom she was “abie to eat” and still had “sorne lower abdominal discomfort but nothing severe." Dr. Headstrom wrote Almonte “a note saying she is okay to go back to the ship.” Dr. i-ieadstrom also gave Aimonte “some of her records from her recent hospitaiization to take with her back to the Dominican Repubiic.”

The first time Almonte spoke to RCCL case coordinator Arroyo was after Almonte saw Dr. Headstrorn on Septerriber 17. Almonte toid Arroyo she had the “same symptoms.” On September 18, Arroyo decided to send Almonte home [C]rew wiil be sent home she still has pain and no clear diagnosis was given apparentiy the CT[ ]scan and the coionoscopy came back negative she stiil suffers from pain and is worried to return to the ship in this condition so i wili send her home for a further investigations [sic].

On September 19, Arroyo requested the Polyclinic and Dr. Headstrom provide “ail med[icai] report & letter saying [patient] is fit to go back to work.” The Polyclinic refused to disclose patient information without Almonte’s consent Almonte flew home to the Dominican Repubiic on September 20. On September 21, Aimonte was admitted to a clinic. The clinic performed surgery to drain an abscess and remove her perforated appendix The attending physician diagnosed and treated Almonte for Crohn’s disease No. 76275-3-|/5 2009 Fiorida Lawsuit On l\lovernber 16, 2009, Almonte filed a lawsuit against RCCL in l\)liami-Dade County circuit court. Almonte alleged RCCL did not provide adequate medical care Almonte alleged she did not receive adequate medical care from the ship's doctors or the “shoreside doctors." Almonte alleged RCCL “wi||fully and callously delayed, failed and refused to provide Plaintitt’s entire maintenance and cure” when it sent her home without any type ot assistance Aimonte alleged the lack of “reasonably fit medical staft” and facilities onboard made the ship unseaworthy. Almonte asserted federal maritime claims for unseaworthiness negligence under the .iones Act, 46 U.S.C. § 30i0¢i, and maintenance and cure Almonte alleged she “kept returning” to the ship doctor “as her pain increased.”

The ship doctor diagnosed her with “peptic uicer disease," gave her medication, and she returned to work. The compialnt alleged that under the Jones Act, RCCL was liable for the failure of “its chosen doctors and agents” to properly diagnose and treat Aimonte.

The complaint alleged that under maritime law, RCCL was responsible to ensure prompt and adequate medical treatment Almonte alieged RCCL breached its duty and she suffered injury as a result of the negligence of RCCL “and/or its agents, servants, andlor employees." RCCL filed an answer. RCCL denied the aiiegation that it chose the onshore doctors or that they were the agents of RCCL.

Almonte did not file a federal maritime ciaim against the Seattle health care providers for negligent care or treatmentl To invoke admiralty jurisdiction over a tort claim against the health care providers, Almonte had to show the tort occurred on navigable water or an injury suffered on land was caused by a vessel on navigable NO. 7627 5»3-l/6 water. Jerome B. Grubart. lnc. v. Great Lakes Dredqe & Dock Co., 513 U.S. 527, 534, 115 S. Ct. 1043, 130 L. Ed. 2d 1024 (1995). The inquiry under the connection test is whether the allegediy tortious activity “is so closely related to activity traditionally subject to admiralty law that the reasons for applying special admiralty rules wouid apply in the suit at hand.” M, 513 U.S. at 539»40.

November 2013 Letter On November 25, 2013, RCCL sent a “Notice and Tender of Defense and Demand for indemnity” to Seattle Radiologists and Dr. lVlann. Seattle Radiologists and Dr. lVlann denied tender of defense because the three-year statute of limitations barred state law claims for medical maipractice in 2007.

2014 Settiement and Release ln June 2014, RCCL settled the federai maritime lawsuit Almonte filed in Fiorida for $700,000. ln exchange Almonte signed a release of all claims against RCCL and ai| medical care providers 2015 indemnity and Contribution i_awsuit On May 27, 2015, RCCL filed a iawsuit in King County Superior Court against Swedish i-lealth Services, Seattle Radiologists, the Polyclinic, Dr. Frederick Mann, Dr. Peggy l-leadstrom, and Dr. Kyung l-ian (collectively, health care prcviders) for equitable contribution and indemnity under federai maritime law and breach of an implied maritime contractual claim. in the alternative RCCL asserted claims for contribution and indemnity under state law. The health care providers filed answers and asserted a number of affirmative defenses, including the statute of limitations NO. 76275-3-|/7 Nlotion for Partial Summarv Judqment on indemnity and Contributlon Clai___r'_r_i_s_ The health care providers filed motions for summary judgment dismissai of the federal maritime and state law ciaims for indemnity and contribution The health care providers argued RCCL could not meet the test under M to invoke admiralty tort jurisdiction and the undisputed evidence did not establish breach of an implied maritime contract The health care providers argued the court should dismiss the state law claim for contribution because there was no “agency relationship” under Washington iaw. in opposition, RCCL argued it did not seek equitable indemnity and contribution for a tort claim against the health care providers. RCCL argued the equitabie contribution and indemnity claim is governed by the underlying Jones Act negligence ciaim asserted in the Florida lawsuit [T]he underlying claim giving rise to the indemnity action was maritime- here Almonte’s claims against RCCL for Jones Act negligence and unseaworthiness-rather than the facts of Defendants’ own negligence as if this were a direct malpractice claim.

RCCL argued the evidence supported breach of an impiied warranty because RCCL “has been sending crewmembers to The Polyclinic and Swedish” and paying for treatment “for more than 15 years.” RCCL argued whether the health care providers were the agents of RCCL under state law was a disputed question of fact.

The court granted the motion for partial summary judgment dismissai of “Federai Adrniralty Tort Claims for Breach of implied Contractual lndemnity, Breach of the implied Warranty of Workmanlike Performance, Equitable indemnity and Contribution, and State Law Statutory Clairn for Contribution." 'i'he court issued a 15-page order.

The court ruled RCCL could not establish the test under Grubart for admiralty tort jurisdiction i-lowever, the court ruled that "[e]ven assuming maritime law were to No. 76275-3~i/8 app|y," the undisputed evidence did not support finding RCCL was entitled to indemnity or contribution under federal maritime law. The court rejected the maritime claim for breach of an implied contract ln this case, based on the uncontroverted facts in this record, the court finds that there is insufficient evidence upon which a trier of fact could find a “special relationship” between plaintiff RCCL and any of these defendants to invoke implied contractual indemnity or indemnity based on breach of workmanlike warranty. in California Home Brands. inc. v. Ferreira, 871 F.2d 830[, 836} (9th Cir. 1998),[5] the Ninth Circuit Court of Appeals explained the reasoning behind the implied warranty of workmanlike performance and observed “that [‘]a covenant of workmanlike performance will not be implied in favor of a shipowner unless there is a relationship between the tortfeasor[ j and the shipowner in the context of shipping that makes the implication reasonable.[’ ]” This approach was adopted by the courts in SeaRiverlGl and Nlaritime Overseasi"'l where they found that this relationship existed based on selection of providers and direct contact between the parties which supported an implied contract ln SeaRiver, the court found past dealings evidencing an understanding between the parties ln Maritirne Overseas the court found that each element of contract had been proven following the ship’s specific choice of medical facilities Here, RCCL has not provided evidence upon which a trier of fact could find such a relationship with these defendants The record in this case, in contrast to that in SeaRiver and other cases relied upon by RCCl., do not demonstrate that RCCL selected the medical providers in this case or that the parties had an understanding based upon past dealings that would effectuate a contract A!though the Declaration of lVls. Arroyo attempts to establish an ongoing reiationship with some of these defendants (Swedish lVledical Center, Polyclinic) based on past referrai of crewmembers it does not create a genuine issue of material fact to prove “an understanding, based on their relationship and past dealings that [the shipowner] would send its injured empioyees to [these treating providers], and that in return, [these treating providers] would provide competent medical treatment to those employees." SeaRiver[,] 983 F. Supp. [atj 1298.

5 Quoting Flunker v. United States, 528 F.2d 239, 243 (9th Cir. 1975).

6 SeaRiver Niar._ lnc. v. indus Nled. Servs.. lnc., 983 F. Supp. 1287 (N.D. Cal. 1997).

7 Nlar. Overseas Corg. v. United States, 433 i'-'. Supp. 419 (N.D. Cal. 1977).

NO. 76275-3-|/9 The court states the contribution claim under RCVV 4.22.040 “is only available if RCCi_ paid as a principal on behalf of its agent[s].”8 The court found the undisputed facts established the health care providers were not empioyed by RCCL, RCCL did not choose to send Aimonte to Dr. l-leadstrom, and “all RCCL actuaily did was authorize payment.” The court concluded a “reasonable trier of fact could find neither consent nor control.” The court reserved ruling on the other state law claims “for equitable contribution and/or indemnity under Washington iaw.”

Niotion for Surnmarv Judqment Dismissal of State Claims The health care providers filed summary judgment motions to dismiss the state law claims for equitable contribution, equitable indemnity, equitable subrogation and unjust enrichment The court granted the summary judgment motions and dismissed the claims The court ruled the doctrine of equitable contribution under Mutual of Enumclaw insurance Co. v. i.lSF insurance Co., ‘l64 Wn.2d 411, 191 P.3d 866 (2008), did not apply. Because RCCL “steps in the shoes” of Almonte and her medical malpractice claims are “barred by the [three-yearj statute of limitations," and because there is no evidence of bad faith, the court dismissed the equitable subrogation claim and conciuded equitable tolling did not apply. The court dismissed the claim for unjust enrichment because the statute of limitations had run on any claim for medical malpractice that Almonte had against the physicians The court dismissed the equitable indemnity claim against Swedish Health Services1 Seattie Radiologists, and Dr. Mann because there is "no genuine issue of material fact that there was any representation made which was relied upon by RCCL

3 Alteration in original.

No. 76275»3-»|/1 0 and a duty created." l-iowever, the court reserved ruling on the equitable indemnity claim against the Polyclinic and Dr. l-leadstrorn until after the parties deposed RCCi_ case coordinator Arroyo because “there is a question of what duty is owed by those defendants to RCCl_.” ln the deposition, Arroyo testified that she did not communicate directly with the Polyciinic or Dr. i-leadstrom. Arroyo said she “did not have a diagnosis from Doctor l-leadstrom” when she decided to send Aimonte home. ln a September 18, 2007 e-mail Arroyo sent to RCCL, she states: l wiil be calling Dr[.] Headstrom in getting information as there is still no diagnosis and no treatment plan the “she can go back to the ship” is very brief no actual ["]she can return to her job duties[”] or [“fit for duty”] on that form. No Colonoscopy result was added on there as well.

This needs to be cleared . . . . [S]he is still not well and will not be able to remain there so she wiil be sent horne for further treatment Arroyo was not “able to make contact with Doctor i-leadstrom.” Swedish Nledlcal Center sent Arroyo Almonte’s medical records on September 25. Arroyo testified that September 25 was “the first time that [she] received clinical records about iVls.

Almonte’s care in Seattle.”

The court granted summary judgment dismissal of the equitable indemnity claim against the Polyclinic and Dr. i-leadstrom. The court concluded the undisputed testimony showed RCCL “had no communications with Polyclinic and/or Dr. Headstrom," RCCL “received no information directly from Polyclinic at all,” and the first time RCCL received medicai records from the Polyclinic was five days after Aimonte left to return to the Dominican Republic. The court found the “only information" RCCL received was a note “saying that [Almonte} could return to the ship,” and the note was

No. 76275-3-|/11 “provided by the patient, . . . not by Poiyclinic or by [Dr.] l-leadstrom." The court ruled as a matter of law “no equitable indemnity claim can lie under the facts of [this] case” and no evidence shows “a duty between the medical professionals and RCCL.”

APPEAL Ol-' SUMMARY .iUDGNlEl\lT DlSl\/|lSSAl_ OF FEDERAL AND STATE CLAliVlS RCCL contends the court erred in dismissing the federal maritime law ciaim for equitable indemnity and contribution, the federal maritime ciaim for breach of an implied contract and the alternative state law claims for contribution and indemnity, equitable subrogation and unjust enrichment We review summaryjudgment de novo. l-iartley v. Statel 103 Wn .2d 768, 774, 698 P.2d 77 (1985). Summary judgment is appropriate When there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(0). This court engages in the same inquiry as the triai court, viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party. M Burlinciton N. Santa Fe R.R., l53 Wn.2d 780, 787, 108 P.3d 1220 (2005). The defendant on summary judgment has the burden of showing the absence of evidence to support the plaintist case Young v. Kev Pharms., lnc., l12 Wn.2d 2161 225, 770 P.2d 182 (1989). Once the moving party shows an absence of a genuine issue of material fact, the burden shifts to the nonmoving party. lqg_ng, 112 Wn.2d at 225. ' V\lhile we construe the evidence and reasonable inferences in the light most favorable to the nonmoving party, if the nonmoving party “ ‘fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial,’ " summary judgment is proper.

Voung, 112 Wn.2d at 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.

No. 76275~3~|/12 Ct. 2548, 91 L. Ed. 2d 265 (1986)); Jones v. Allstate ins Co., 146 Wn.2d 291, 300»01, 45 P.3d 1068 (2002). “[Ni]ere allegations denials opinions or conclusory statements” do not establish a genuine issue of material fact lnt’l Uitimate, lnc. v. St. Paul Fire & Nlarine lns. Co., 122 Wn. App. 736, 744, 87 P.3d 774 (2004).

Questions of fact may be determined as a matter of law “ ‘when reasonable minds could reach but one conclusion.’ ” __Qwe_n, 153 Wn.2d at 788 (quoting §ra_rtj§y, 103 Wn.2d at 775). “[A]n appellate court may affirm a grant of summary judgment on an issue not decided by the trial court provided that lt is supported by the record and is within the pleadings and proof.” Plein v. Lackey, 149 Wn.2d 214, 222, 67 P.3d 1061 (2003).

FEDERAL lVlARlTll\/lE Ci_Ali\/lS State courts have concurrent jurisdiction to adjudicate maritime cases under the “saving to suitors” clause of the United States Constitution. 28 U.S.C. § 1333(1);9 U.S. CONST. art lli, § 2, cl. 1; Dean v. Fishinq Co. of Alaska, 177 Wn.2d 399, 405, 300 P.3d 815 (2013); Endicott v. icicle Seafoods, inc., 167 Wn.2d 873, 878»79, 224 P.3d 761 (2010). Federal maritime law governs maritime actions brought in state court _E__rM, 167 Wn.2d at 878-79.

1. Federa| Maritime Equitable indemnity and Contribution Ciaim RCCL does not contest there is no jurisdiction over a federal maritime tort claim under Grubart. RCCi_ contends it is entitled to equitable indemnity and contribution for

9 28 U.S.C. § 1333(1) provides “'i'he district courts shall have original jurisdiction, exclusive of the courts of the States, of . . . [a]ny civil case of admiralty or maritime jurisdiction saving to suitors in all cases all other remedies to which they are otherwise entitled." The Admira|ty Extension Act, 46 U.S.C. § 30101, states in pertinent part, “The admiralty and maritime jurisdiction of the United States extends to and includes cases of injury or damage, to person or property, caused by a vessel on navigable waters even though the injury or damage is done or consummated on iand.” 46 U.S.C. § 30101(a).

NO. 76275-3-|/13 the Jones Act negligence claim asserted in the Fiorida maritime lawsuit The undisputed record establishes Almonte did not assert a tort claim in the Florida lawsuit Almonte alleged federal maritime claims for unseaworthiness negligence under the Jones Act, and maintenance and cure.

The federal maritime doctrine of maintenance and cure imposes a nonwaivable and nondelegable duty on a shipowner to provide food, lodging, and medical treatment to a seaman injured in the course of employment See ge Zon v. Am. President Lines L, 318 U.S. 660, 667, 63 S. Ct. 814, 87 L. Ed. 1065 (1943). A seaman has the right to recover damages for injuries sustained due to the unseaworthiness of the ship. M Q_sgggjg, 189 U.S. 158, 1751 23 S. Ct. 483, 47 L. Ed. 760 (1903).

Congress passed the Jones Act in 192010 to create a negligence cause of action for ship crewmembers against their employers Cal. Home Brands 871 F.2d at 833; Rvan Stevedorinq Co. v. Pan~Atlantic S.S. Coro., 350 U.S. 124, 133-34, 76 S. Ct. 232, 100 L. Ed. 133 (1956). The Jones Act creates "a negligence cause of action o_nly against the employer.” Cai. l-lome Brands 871 F.2d at 833.11 A sick seaman has a cause of action under the Jones Act for the shipowner’s wrongful failure to provide proper medical care M, 318 U.S. at 667-69. Congress extended to ship workers the rights granted to railroad employees by the Federal Ernployers’ l_iability Act (FELA), 45 U.S.C. § 51. Cox v. Roth, 348 U.S. 207, 208, 75 S. Ct. 242, 99 L, Ed. 260 (1955).

Under FEl_A, an employer is “ ‘liabie for the injuries negligently inflicted on its employees by its officers agents or employees.’ ” Craiq v. Atl. Richfieid Co., 19 F.3d

i° LAW OF June 5, 19201 ch. 250l § 33, 41 STAT. 1007 (codified as former 46 U.S.C. § 688). ll Emphasis in original.

No. 76275-3-|/14 472, 477-78 (9th Cir. 1994)12 (quoting i-iopson v. Texaco lnc., 383 U.S. 262, 263, 86 S. Ct. 765, 15 L. Ed. 2d 740 (1966)), To recover under the Jones Act, the seaman must establish by a preponderance of the evidence (1) negligence on the part of his employer, or agents thereof, and (2) that the negligence Was a cause, "however slight,” of his injuries Havens v_ F/T Polar _M_js_t, 996 F.2d 215, 218 (9th Cir. 1993).

Whether RCCL is entitled to equitable indemnity and contribution for settlement of the Jones Act negligence claim turns on whether the Seattle health care providers were acting as the agents of RCCL. A shipowner is liable for the negligence of an onshore doctor “when the shipowner selects a doctor who acts negligent|y." QM Am. S.S. Co., 176 F.3d 891, 896 (6th Cir. 1999); see also Cent. Guif S.S. Corp. v. Sambula, 405 F.2d 291, 299-302 (5th Cir. 1968) (treating onshore physician was ship’s agent because the shipowner, not the crewmember, selected him); Nlar. Overseas C_org;, 433 F. Supp. at 421 (doctor hired by shipowner is agent of the shipowner “and the shipowner is liable for the malpractice of the doctor”); Fltzclera|d v. A.L. Burbani< & L, 451 F.2d 670, 680 (2d Cir. 1971) (physician was ship’s agent where he provided medical services under contract for the shipowner).

The undisputed record shows RCCL did not "choose" or select the Seattle health care providers 'i'he record does not establish an agency relationship under the Jones Act between RCCL and the Seattle health care providers When Sitka Community i-lospital physician Dr. Robert Hunter discharged Almonte on September 9, 2007l he referred Almonte to Dr. Peggy lieadstrom at the Polyclinic in Seattle Dr. l-leadstrom

12 internal quotation marks omitted

No. 76275-3-|/15 admitted Almonte to Swedish Medical Center and ordered diagnostic testing and a colonoscopy. RCCL case coordinator Arroyo had no direct contact with Dr. l-ieadstrom or the other Seattie health care providers The declaration Arroyo submitted that states she “coordinate[d] Aimonte’s treatment in Seattie” by arranging Almonte’s “transportation, iodging, appointments payment of medical expenses and foilow-up care“ does not create a materiai issue of fact Arroyo did not testify that RCCL engaged or selected Dr. I-ieadstrom or the other Seattle health care providers to treat Aimonte. Aithough Arroyo testified that she “c|osely reviewed Almonte’s medicai records,” the record shows the first time Arroyo had access to the medical records was five days after Airnonte flew to the Dominican Repub|ic.

The Septernber 10 t_etter of Confirmation of Benefits Niedicai Services and payment for medical care does not show an agency relationship RCCL had an absolute duty under the doctrine of maintenance and cure to pay medical expenses Because there is no agency relationship between the parties under the Jones Act, we affirm the summary judgment dismissai of RCCL‘s federai maritime claim for equitable indemnity and contribution 2. Federal Niaritime implied Contractual indemnity Claim ln Byag, the United States Supreme Court held there is an implied warranty of workmaniil<e performance in every contract between a maritime contractor and a shipowner B_yL, 350 U.S. at 133-34. “'i'he warranty of workmanlike performance is intended to ease the burden of absoiute liability by permitting a shipowner to recover

NO. 76275-3-!/16 against a contracting party whose poor workmanship created the dangerous condition.”

Cal. Home Brands 871 F.2d at 836.13 in Waterman Steamship Corp. v. Dudan & NlcNamara, |nc., 364 U,S. 42t, 8i S.

Ct. 200, 5 L. Ed. 2d 169 (1960), the Supreme Court extended Ryan indemnity to situations where there was no express contractuai relationship A shipowner can be held vicariously liable under the doctrine of unseaworthiness for the acts of third parties that cause injury to a seaman. Flunl<er, 528 F.2d at 242. in Joiner v. Diamond Ni Drii|ing Co.1 677 F,2d 1035, 1038 (5th Cir. 1982), the Fifth Circuit held absent a special relationship, Ryan indemnity does not apply to a “private land~locked physician.”

A private land-iocked physician Who treats a patient who happens to have been injured at sea, does not thereby enter into an implied maritime contract We can find absolutely no support for the proposition that an ordinary, private, onshore physician who treats an injured sailor has thereby submitted himself to the rules of maritime commerce Rather, it has been consistently held that it is state law which controls in cases such as this Joiner, 677 F.2d at 103814 RCCL contends there is a genuine issue ot material fact as to whether RCCL had a speciai relationship with the Seattle health care providers RCCL cites il/iaritime Overseas, 433 F. Supp. 419, and SeaRiver, 983 F. Supp. 1287. ln l\llaritirne Overseas, the shipmaster contacted the government hospital in Japan to treat a crewmember and agreed to pay for care. i\/iar. Overseas, 433 F. Supp. at 420. The shipowner filed an indemnity action for breach of an impiied contractl Niar. Overseas, 433 F. Supp. at 42‘i.

Because the shipmaster seiected the hospital and requested treatment in exchange for payment the court heid the hospital was iiabie for breach of an implied contract Mar.

13 Ernphasis in orlginai.

14 Emphasis in original.

NO. 76275-3-{/17 Overseas, 433 F. Supp. at 422. tn SeaRiver, the court held there was an implied contractual relationship because the shipowner “regulariy referred its employees in need of medical treatment to [the clinic]” for 8 to 10 years SeaRiver, 983 F. Supp. at 1298-99, t291. The court concluded the parties “developed an understanding1 based on their relationship and past dealings that [the shipownerj would send its injured employees to [the clinicj, and that in return, [the ciinic] would provide competent medical treatment to those employees.” SeaRiver, 983 F. Supp. at 1298. `the evidence that RCCL has paid Swedish and the Poiyciinic for 15 years to treat crewmembers does not create a material fact. Absent any evidence that the payments were made as the result of a referral by RCCL, the payments alone do not establish an implied contract. On this record, a reasonable trier of fact could only conclude there was no speciai relationship between the parties We conciude the court did not err by dismissing the implied contractual indemnity under federal maritime iaw.

STATE LA\N CLAll\/iS 1. RCW 4.22.040 and RCW 4.22.070 RCW 4.22.040 establishes a right of contribution between joint and severalty liable parties RCVV 4.22.070(1)(a) allows joint and several liability where “the negligent parties were acting in concert or where there was a master/servant or principal/agent reiationship at play.” Kottler v. State, 136 Wn.2d 437, 446, 963 P.2d 834 (1998).

Under Washington iaw, “an agency relationship resuits from the manifestation of consent by one person that another shall act on his behalf and subject to his control, with a correlative manifestation of consent by the other party to act on his behalf and subject to his controi.” lVloss v. Vadrnan, 77 Wn,Zd 3961 402-03, 463 P.2d 159 (1969).

NO. 76275-3-|/18 A prerequisite of agency is “ ‘Qn_t_r_gj of the agent by the principal.’ ” Bain v. l\/letro.

Nlortg. Grg., lnc., 175 Wn.2d 83, 107, 285 P.3d 34 (2012)15 (quoting M§, 77 Wn.2d at 402). RCCL has the burden of establishing agency l\/l&s_,, 77 Wn.2d at 403. `l`he existence ct a principal-agent relationship is a question of fact unless the facts are undisputed or reasonable minds could reach oniy one conclusion O’Brien v. Hafer, 122 Wn. App. 279, 284, 93 P.3d 930 (2004).

RCCL argues the declaration of Arroyo creates a genuine issue of material of fact whether RCCL and the health care providers had an agency relationship under Washington law. Arroyo testified that she “worked with RCCL’s agents in Sitka and Seattle to coordinate Almonte‘s treatment in Seattle, including her transportation, iodging, appointments payment of medical expenses and foliow-up care.”

The undisputed facts show RCCL did not refer Almonte to the Seattle heaith care providers Nothing in the record shows that the health care providers consented to act as RCCL’s agent or that RCCL exercised any control over the treatment of Aimonte by the Seattle health care providers The record shows that RCCL “doesn’t have internal operating procedures or policies dictating how medical care should be provided." RCCL leaves medical care decisions “up to the doctors” and the doctors “n'iake the determinations as to the appropriate care and treatment to provide to a crew member that they’re treating as a patient." Arroyo testified that she had no “direct communication with Doctor Peggy l-leadstrom." Arroyo testified that she did not “receive any direct medical information from the Poiyclinic about iVls. Almonte." The court did not err by dismissing the claim for contribution under RCW 4.22.040 and .070.

15 Emphasis in original.

No. 76275-3-|/19 2. Equitable Contribution Claim RCCl. contends the court erred by ruling it is not entitled to equitable contribution under Niutual of Enumciaw, 164 Wn.2d 411 in the context of insurance law, “equitable contribution is a right of one insurer to collect from another insurer on a loss that both insurers are concurrently obligated to cover." Nlut. of Enumclaw, 164 Wn.2d at 423.16 in Mutual ot Enumclaw, the Washington Supreme Court expressly notes the doctrine does not apply to joint tortfeasors lViut. of Enumclaw, ‘l64 Wn.2d at 417 n.1 (Contribution and subrogation in the insurance context differ “marl<edly from traditional notions of these concepts in tort law or even in contract iaw. We do not intend this opinion to affect general tort or contract |aw."). None of the cases RCCL cites address equitable contribution between tortfeasors “l“he court did not err by dismissing the claim for equitable contribution 3. Equitable indemnitv RCCL claims the court erred in ruling RCCL did not establish a right to equitable indemnity17 An equitable indemnity right exists if there is a legal duty between RCCL and the Seattle health care providers Sabev v. i~ioward Johnson & Co., 101 Wn. App. 575, 592, 5 P.3d 730 (2000). l_egal duty is a question of law which the court reviews de novo. Webb v. Neuroeduc. inc.. P.C., 121 Wn. App. 336, 346, 88 P.3d 417 (2004). l-lere, unlike in M, the record shows the health care providers did not owe a duty to RCCL. Contrary to the assertion of RCCL, the note Dr. i-leadstrom gave to

15 Ernphasis in original.

17 For the first time on appeall RCCL cites Ne|son v. Sponberg, 51 Wn.2d 371, 374-75, 318 P.2d 951 (l957), to argue equitable indemnity does not require a legal duty. RCCL did not raise this argument below. §_e_e_ RAP 9_12 (on review of order granting summary judgmentf "appellate court will consider only evidence and issues called to the attention of the trial court").

No. 76275~3-1/20 Almonte that cleared her to return to the ship does not create a duty to RCCL under chapter 7.70 RCV\l. The court did not err in dismissing the claim for equitable indemnity.

4. Equitable Subroqation Equitable subrogation “allows one party to step into the shoes of a second party who is owed a debtor obligation and to receive the benefit of that debt or obligation in the absence of any contractual agreement or assignment of rights between those two parties or the debtor.” Columbia Cmtv. Bank v. Newman Park, LLC, 177 Wn.2d 566, 573, 304 P.3d 472 (2013). But equity will enforce rights only if the action is brought within the time in which an action could have been brought to enforce the original obligation. Newcomer v. lVlasini, 45 Wn. App. 284, 286, 724 P.2d 1122 (‘i986). The three-year statute of limitations bars the equitable subrogation ciaim.

RCCL cites Ellis v. Barto, 82 Wn. App. 454, 918 P,2d 540 (1996). §ili_s holds that “if a claim is substantively based upon the law of another stats the limitation period of that state applies.” _E_B, 82 Wn. App. at 457-58. But RCCl_’s equitable subrogation claim is under Washington law, not Fiorida law. in the alternative, RCCt. contends equitable tolling applies to its claim for equitable subrogation “The predicates for equitable tolling are bad faith, deception, or false assurances by the defendant and the exercise of diligence by the piaintifl.” My y_”_g__a__n;, f35 Wn.2d 193, 206, 955 P.2d 791 (t998). RCCL does not argue that the health care providers acted in bad faith or made false assurances nor does the record support such a conclusion We conclude the court did not err by granting summary judgment dismissal of RCCL’s claim for equitable subrogation

NO. 76275-3-l/21 5. Unjust Enrichrnent `i'o state a claim for unjust enrichment1 the plaintiff must show (1) the defendant received a benefitl (2) the benefit received is at plaintiffs expense, and (3) the circumstances make it “unjust for the defendant to retain the benefit without payment.”

Young v. Young, 164 Wn.2d 477, 484-85, 191 P.3d 1258 (2008). RCCL contends the 20l4 settlement and release conferred a benefit on the health care providers Because Almonte’s claim against the health care providers was barred by the statute of limitations when the parties entered the settlement and release, the court did not err in dismissing the claim for unjust enrichment We affirm summary judgment dismissal of the claims under federal maritime law and state law.

VVE CONCURZ Ml.a;_, M/ 2l