Opinion
No. 64776-8-I.
Filed: June 13, 2011. Unpublished Opinion
Appeal from a judgment of the Superior Court for King County, No. 08-2-12754-1, Douglass A. North, J., entered December 24, 2009.
Affirmed in part and reversed in part by unpublished opinion per Dwyer, C.J., concurred in by Schindler and Spearman, JJ.
Miguel Bernal Hernandez and his attorney, Tom Evans, appeal from several orders entered by the trial court, including an order in which the court imposed upon Evans sanctions for his behavior at a Civil Rule 35 medical examination of his client. Specifically, the trial court determined that Evans had acted improperly by refusing to allow his client, Bernal Hernandez, to agree to the examiner's conditions for the examination. However, the trial court's determination that Evans' behavior was inappropriate was based upon the court's mistaken understanding that Bernal Hernandez had the burden of requesting that the trial court protect him from the examination conditions desired by the defendant's designated examiner. Because the CR 35 examination was one authorized by agreement of the parties, and because the parties had never agreed to the conditions sought by the defendant's examiner, Bernal Hernandez had no obligation to either submit to those conditions or to seek protection from the trial court. Accordingly, the trial court erred by imposing sanctions.
As to the remaining issues on appeal, we affirm the trial court's award of costs, as recently amended.
I
Miguel Bernal Hernandez worked as a processor on a ship operated by Glacier Fish Company, LLC. In 2008, the ship caught fire, but all of the crew members were safely rescued. Bernal Hernandez accepted Glacier Fish's offer of compensation in exchange for the execution of a release of claims.
In separate actions, three of the crew members, including Bernal Hernandez, sued Glacier Fish, claiming that they suffered "traumatic injuries" as a result of the incident. Each of these crew members was represented by Tom Evans. Bernal Hernandez and another man, Ancelmo Rodriguez-Garcia, filed suit in state court. The third man, Jesus Flores, filed suit in federal court.
Glacier Fish requested to have each of the claimants submit to an independent medical examination (IME) performed by Dr. Gerald Rosen. Dr. Rosen, a psychologist, required the examinees to agree to the terms contained in a document entitled "Information Pertaining to Legal, Insurance, and Employer Evaluations." The document first informs the examinee that he or she is not Dr. Rosen's patient or client. It then explains, among other things, that the examinee may waive attorney-client privilege, may be personally responsible for certain costs of the examination, and may have a right to choose another examiner. The document requires several signatures of the examinee, indicating that the examinee understands the information set forth therein. One such portion of the document requiring the examinee's signature states, "I understand that communications with my attorney are protected by the attorney-client privilege and it is my right to not disclose these communications." CP at 236.
"For today's evaluation, I have been asked to conduct an independent psychological assessment. In this context, you are not my patient. Instead, the law firm or company that has requested the assessment is my client." Clerk's Papers (CP) at 234.
The provision regarding attorney-client privilege provides:
[A]t different times during our meetings you may be asked if anyone has provided you with information on certain tests or psychiatric issues. When responding to these questions you should keep in mind that communications between you and your attorney are privileged. You can, of course, waive this privilege but most attorneys would advise against this and you should check with your own attorney before doing so. Please keep this important issue in mind during our meetings. For example, let's say you are asked "Has anyone provided you with information about Depression, either in written or verbal form," and your therapist has given you an information pamphlet on that disorder. In this example, you would of course answer "Yes," and you could then discuss the materials in detail. If, however, similar information was provided by your counsel you could answer "Yes," or you might instead protect the communication and respond by stating, "I can't discuss that," or "That involves attorney-client privilege." If you have any questions about these points, you should speak with someone from your attorney's office.
CP at 234-35.
The provision regarding financial arrangements provides:
[T]here is no need for you to be concerned about financial arrangements. The cost of my services are billed directly to the law firm or company that has retained me and they, not you, are responsible for the charges. The only exception is a charge that results from missed appointments or late cancellations. In such cases, an attorney may attempt to recover the costs from you.
CP at 235.
The provision suggesting that the examinee has a right to another examiner provides:
CONSUMER PROTECTION LAWS: Washington State Licensing Law requires that psychologists inform consumers of their rights and issues of quality of care. In accord with these laws I want to emphasize your right to raise questions about my services. You also may have the right to request a different psychologist for this evaluation.
CP at 236.
In the federal court case filed by Flores, Evans was adamant that Flores, his client, should not have to sign Dr. Rosen's information document. In an order setting forth the conditions of Flores' IME, United States District Judge Zilly ruled that "Dr. Rosen will not require Plaintiff to sign any documents." CP at 134.
Evans then sent to defense counsel, David Bratz, a letter that was addressed to Dr. Rosen. In the letter, Evans expressed his understanding of Judge Zilly's order regarding Dr. Rosen's information document. Therein, Evans opined that Dr. Rosen could not "ask Mr. Flores orally to agree or disagree with any specific terms or conditions for conducting this exam." CP at 1599. Evans further stated that the defendant, through Dr. Rosen, must "not seek, either orally or in writing, Mr. Flores' agreement on any matters as to how the exam is to be carried out, its purpose, your rights and/or obligations, his rights and/or obligations." CP at 1600. After receiving Evans' letter, Bratz informed Evans that he would file a bar complaint against Evans were Evans to directly correspond with Dr. Rosen. Bratz further expressed his disagreement with Evans' interpretation of Judge Zilly's order. Evans did not send the letter to the doctor. Neither did Bratz.
In the state actions, Glacier Fish then requested that Bernal Hernandez and Rodriguez-Garcia submit to IMEs to be performed by Dr. Rosen, under conditions identical to the IME ordered by Judge Zilly in Flores' case. After a telephone conference between attorneys, Evans agreed to the request, with the additional conditions that the examinations would be monitored by him, audio recorded, and conducted with a Spanish interpreter present.
Evans attended Bernal Hernandez's IME as an observer, as agreed by the parties. However, at the IME, Dr. Rosen refused to conduct the examination without Bernal Hernandez's first orally agreeing to the terms of the information document. Dr. Rosen insisted that he was required by his professional, ethical, and statutory duties to receive Bernal Hernandez's agreement to the terms contained within the document. Evans, on the other hand, was adamant that Dr. Rosen could not require Bernal Hernandez to agree to the terms set forth in the doctor's information document because Bernal Hernandez's consent thereto was not a term of the litigating parties' IME agreement. Dr. Rosen eventually cancelled both Bernal Hernandez's IME and Rodriguez-Garcia's IME, which was scheduled for the following day.
Glacier Fish then filed motions seeking (1) to compel the plaintiffs' IMEs, (2) a protective order barring Evans from attending future IMEs, and (3) monetary sanctions as a result of Evans' obstructive behavior at Bernal Hernandez's IME. The trial court found that Evans had engaged in "improper, unreasonable, harassing and obstructive conduct at the agreed to Rule 35 examination" and in "persistent unjustified refusal to allow Dr. Rosen to obtain Plaintiff Bernal's informed consent." CP at 2290. Ultimately, the trial court granted the motion to compel, granted the protective order excluding Evans from the Rodriguez-Garcia IME, and sanctioned Evans for interfering with both Bernal Hernandez's and Rodriguez-Garcia's IMEs, awarding to Glacier Fish the sum of $5,000, which was not segregated between the cases.
At the time that Glacier Fish first filed its motions, Bernal Hernandez's case and Rodriguez-Garcia's case were before different trial judges. Subsequently, however, the cases were consolidated.
By the time that the trial court entered its substituted order, from which this appeal is taken, the Bernal Hernandez IME had already occurred.
The substituted order provides:
THEREFORE, the Court ORDERS ENTRY OF SANCTIONS under Civil Rule 37(a)(4) 37(d), and the Court's inherent power, against Plaintiff's counsel Mr. Thomas Evans, personally, for improperly obstructing Dr. Rosen's ability to obtain Plaintiff Bernal's informed consent causing the last-minute cancellation of that examination, for engaging in ex parte discussions with defense expert Dr. Rosen on June 10, 2009, for expressly indicating an intent to similarly obstruct the examination of Plaintiff Rodriguez which forced cancellation of Plaintiff Rodriguez' examination at the last minute, and for inexcusably failing to raise any issues regarding obtaining of informed consent of Plaintiff Rodriguez or Bernal prior to that date, in the combined total amount of $5,000.
CP at 2292.
In November, Bernal Hernandez's case proceeded to trial. The jury found that the release of claims that Bernal Hernandez had signed shortly after the fire was valid and that it prevented Bernal Hernandez from receiving any further compensation for his injuries. On December 24, the trial court awarded costs against Bernal Hernandez, including costs for interpreters and costs for preserving the testimony of one of Glacier Fish's expert witnesses. Also on December 24, the trial court entered judgment in Bernal Hernandez's case, which included judgment entered against Evans individually in the amount of $5,000 based on the August 14 substituted order.
According to the parties, the Rodriquez-Garcia case settled in 2009.
Both Bernal Hernandez and Evans appeal.
II
We begin by addressing the issue raised by Evans' appeal. Evans contends that the trial court erred by imposing sanctions against him. We agree. CR 35 provides:
(a) Examination.
(1) Order for Examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical examination by a physician, or mental examination by a physician or psychologist or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
(2) Representative at Examination. The party being examined may have a representative present at the examination, who may observe but not interfere with or obstruct the examination.
(3) Recording of Examination. Unless otherwise ordered by the court, the party being examined or that party's representative may make an audiotape recording of the examination which shall be made in an unobtrusive manner. A videotape recording of the examination may be made on agreement of the parties or by order of the court.
(b) Report of Examining Physician or Psychologist. The party causing the examination to be made shall deliver to the party or person examined a copy of a detailed written report of the examining physician or psychologist setting out the examiner's findings, including results of all tests made, diagnosis and conclusions, together with like reports of all earlier examinations of the same condition, regardless of whether the examining physician or psychologist will be called to testify at trial. The report shall be delivered within 45 days of the examination and in no event less than 30 days prior to trial. These deadlines may be altered by agreement of the parties or by order of the court. If a physician or psychologist fails or refuses to make a report in compliance herewith the court shall exclude the examiner's testimony if offered at the trial, unless good cause for noncompliance is shown.
(c) Examination by Agreement. Subsections (a) (2) and (3) and (b) apply to examinations made by agreement of the parties, unless the agreement expressly provides otherwise.
Independent medical examinations must proceed according to this rule and according to either a court order or the parties' agreement. CR 35. Absent a court order, a plaintiff is not required to submit to an IME. However, a plaintiff can voluntarily submit to an IME in the absence of a court order; such an IME must occur according to the conditions agreed upon by the parties. CR 35(c). To agree is "[t]o unite in thought; to concur in opinion or purpose." Black's Law Dictionary 78 (9th ed. 2009); see also Webster's Third New International Dictionary 43 (2002) (defining agree as "to achieve harmony (as of opinion, feeling, or purpose)" or to "become of one mind"). An agreement, then, is "[a] mutual understanding between two or more persons" and "[t]he parties' actual bargain as found in their language or by implication from other circumstances." Black's, supra, at 78; see also Webster's, supra, at 43 (defining agreement as "the act of agreeing or coming to a mutual arrangement").
Here, at the time that Evans refused to allow Dr. Rosen to obtain Bernal Hernandez's consent to the terms of the information document, there was no court order in place regarding the CR 35 examination of Bernal Hernandez. Rather, there was an agreement between the parties herein as to the conditions of the CR 35 examination. The conditions of the IME agreed upon by Bernal Hernandez and Glacier Fish included the conditions contained within Judge Zilly's order entered in Flores' case. Judge Zilly's order provided that the plaintiff could not be made to "sign any documents." CP at 134. Soon after entry of this order, Evans had informed Glacier Fish's counsel in writing that he did not believe that Judge Zilly's order required Evans' clients to agree, either orally or in writing, to the terms set forth in Dr. Rosen's document.
There can be no agreement as to a particular condition where the parties do not "unite in thought" or do not have a "mutual understanding." Black's, supra, at 78. Because there was no mutual understanding between the attorneys representing Bernal Hernandez and Glacier Fish, the parties did not agree that Dr. Rosen could demand the plaintiff's consent to the terms contained in the information document. Thus, such a condition was not included as a condition of the agreed upon IME. The parties' agreement as to the conditions of the agreed upon CR 35 examination did not include any requirement that Bernal Hernandez agree to the terms of Dr. Rosen's document. While Glacier Fish may have desired such a condition, in the absence of an explicit agreement, the burden was on Glacier Fish to seek a court order requiring Bernal Hernandez to agree to the terms of Dr. Rosen's document.
"The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made." CR 35(a)(1) (emphasis added).
Nevertheless, the trial court, pursuant to "Civil Rule 37(a)(4) 37(d), and the Court's inherent power," imposed sanctions against Evans for, in its view, interfering with the IME. CP at 2292.
CR 37(a)(4) provides that if a motion to compel discovery is granted, the trial court shall "require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees." "[D]ecisions under CR 37 require the exercise of judicial discretion that will not be disturbed on appeal except upon a clear showing of abuse of discretion." Eugster v. City of Spokane, 121 Wn. App. 799, 815, 91 P.3d 117 (2004) (citing Reid Sand Gravel, Inc. v. Bellevue Props., 7 Wn. App. 701, 705, 502 P.2d 480 (1972)). "A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds. . . . A decision based on a misapplication of law rests on untenable grounds." Ryan v. State, 112 Wn. App. 896, 899-900, 51 P.3d 175 (2002) (citing Ausler v. Ramsey, 73 Wn. App. 231, 235, 868 P.2d 877 (1994)).
The trial court imposed sanctions upon Evans because it believed that Evans had the burden to seek the court's protection from the requirement that Bernal Hernandez agree to the terms of Dr. Rosen's document. Indeed, one of the trial court's stated bases for the imposition of sanctions was that Evans "inexcusably fail[ed] to raise any issues regarding obtaining [the] informed consent of Plaintiff Rodriguez or Bernal prior to [the IME] date." CP at 2292. This basis is inconsistent with the record and shifted the defendant's burden onto the plaintiff.
Evans had previously informed defendant's counsel of his interpretation of Judge Zilly's order. It was defendant's counsel's burden to either obtain agreement to the defendant's understanding of Judge Zilly's order (if it were to be used as the basis for agreement) or seek an order from the trial court mandating that interpretation. The record before us does not indicate that either course was taken.
In the absence of a court order, the party to be examined has no burden to submit to conditions to which that party did not agree. The party to be examined has no burden to present the matter to the trial court. It is the party seeking the examination that is so burdened.
Here, Bernal Hernandez was not required to manifest consent to the terms of Dr. Rosen's information document, as such a condition was not agreed to by the parties. Accordingly, Evans' action in not allowing his client to accept a condition to which the parties had not agreed was not improper.
In ruling on the defendant's motion to compel, the trial court inadvisably assigned to the plaintiff the burden of resolving unresolved issues prior to the commencement of the IME. As such, the trial court misapplied the law. Accordingly, the trial court abused its discretion by sanctioning Evans for his refusal to allow the IME to proceed under conditions to which the parties had not agreed and to which no court had ordered. The imposition of monetary sanctions was made in error, and must be reversed.
In its cross appeal, Glacier Fish contends that the trial court erred by awarding only a portion of the costs and fees requested by Glacier Fish when the trial court sanctioned Evans. Glacier Fish fails to provide any authority that would allow Glacier Fish to appeal from an order jointly entered in two causes where one of the cases has since settled and the sanctions are not segregated between the cases. Additionally, given our reversal of the trial court's imposition of sanctions, Glacier Fish is not entitled to any such award, let alone to a higher amount.
Evans also contends that the trial court erred by excluding him from the rescheduled IME for Rodriguez-Garcia. As that case has settled, the question is moot.
We take this opportunity to note that many of the provisions contained within Dr. Rosen's document are ill-advised. Specifically, Dr. Rosen's document indicates that an examinee may have a right to be examined by a different psychologist. Such a suggestion is of questionable accuracy, given that the plaintiff is attending the IME either by agreement of the parties or by order of the court.
In addition, contrary to Glacier Fish's adamant assertions otherwise, there is no evidence that Dr. Rosen is legally required to provide the information contained within the document to plaintiffs participating in an IME. The statute cited in support of this contention relates to requirements concerning a "client" who is engaged in "any program of treatment." RCW 18.83.115(1); see also WAC 246-924-359 ("The psychologist shall keep the client fully informed as to the purpose and nature of any evaluation, treatment, or other procedures, and of the client's right to freedom of choice regarding services provided."). Thus, Dr. Rosen is statutorily required to provide information to "clients." However, as Dr. Rosen's information document explicitly explains, IME examinees are not Dr. Rosen's patients or clients. Rather, the law firm or company hiring Dr. Rosen is his client. Moreover, Bernal Hernandez, as with most examinees submitting to an IME, was not involved in a "program of treatment" with Dr. Rosen. RCW 18.83.115. The objectionable terms are at best surplusage and at worst misleading.
"'Client' means a recipient of psychological services." WAC 246-924-352 . Other sections of WAC 246-924 refer to "client, patient, or key party." This indicates that psychologists have regulated relationships with individuals other than clients. See WAC 246-924-358 .
There is no support for Glacier Fish's contention that "[t]here is no basis for construing the use of the term 'client' to whom the statutory and regulatory obligations of informed consent . . . attach only in the narrow circumstances where a doctor-patient relationship has been established." Resp't Br. at 31 n. 5. On the contrary, the statute itself provides a basis to construe the term "client" in such a manner. The statutory provision preceding RCW 18.83.115 establishes the psychologist-patient privilege. RCW 18.83.110. In so creating this privilege, it utilizes the phrase "a client." RCW 18.83.110. We read each provision of a statute together with other provisions so as "to achieve a harmonious and unified statutory scheme." Sherman v. Kissinger, 146 Wn. App. 855, 865, 195 P.3d 539 (2008).
In addition, some of the terms set forth in Dr. Rosen's document are unfair to the plaintiff. For instance, the term indicating that the plaintiff has a right to be examined by another examiner is not simply incorrect, it can be used against the plaintiff at trial. It is common for the plaintiff or the plaintiff's counsel to seek to impeach a CR 35 examiner at trial. The plaintiff's signature on a form indicating that the plaintiff chose to be examined by the testifying examiner can be used by defense counsel to blunt the effect of the impeachment attempt. Conditioning the performance of a CR 35 examination in such an unfair manner is inconsistent with the rule itself.
III
We now turn to the issues raised by Bernal Hernandez. He first contends that the trial court erred by awarding to Glacier Fish the costs of two of the interpreters hired by Glacier Fish. We disagree.
RCW 2.43.030 contains provisions relating to the trial court's appointment of interpreters for non-English-speaking persons. In proceedings not initiated by agencies of the government, "the cost of providing the interpreter shall be borne by the non-English-speaking person unless such person is indigent according to adopted standards of the body." RCW 2.43.040(3). Moreover, "[t]he cost of providing the interpreter is a taxable cost of any proceeding in which costs ordinarily are taxed." RCW 2.43.040(4). RCW 4.84.010, authorizing the award of costs to the prevailing party, does not explicitly include interpreter fees, but it authorizes an award of costs that are "otherwise authorized by law." Interpreter fees are appropriately awarded as costs to the prevailing party against the unsuccessful non-English-speaking party.
Here, the trial court awarded to Glacier Fish the costs of the fees charged by the two Spanish interpreters utilized at trial. The record indicates that Spanish interpreter Pablo Sepulveda was sworn to interpret in the cause on November 25, and that Spanish interpreter Sheila Harrington was sworn on November 30. These interpreters were certified by the administrative office of the courts, as required. RCW 2.43.030(1); GR 11.1. The fees for these interpreters were properly taxed as costs awarded to Glacier Fish, as the prevailing party at trial. RCW 2.43.040(3), (4); RCW 4.84.010.
Glacier Fish had, in fact, requested fees for a third interpreter who was not utilized at trial due to a conflict of interest. The trial court declined to award fees for this third interpreter because it did not find her fees "appropriate since she was never used as an interpreter because she had a conflict." CP at 2280.
Nevertheless, Bernal Hernandez contends that such costs were unwarranted because, he argues, he had provided an interpreter for the proceedings — Rosa Manriquez — rendering additional interpreters unnecessary. However, Manriquez is not a certified court interpreter and, based upon the record before us, the trial court never found her, pursuant to the relevant statutory provisions, to be a qualified interpreter. RCW 2.43.030. The trial court herein originally allowed Manriquez to be sworn to interpret for a limited purpose. However, the trial court subsequently authorized other, certified interpreters to interpret in the case. The trial court did not err by accommodating the defendant's request that certified interpreters be used when available, instead of the uncertified Manriquez. RCW 2.43.030.
The parties did not provide a complete record for our review on appeal; specifically, they disregarded the verbatim reports of proceedings. However, the appellant provides the November 30 verbatim report of proceedings in an appendix to his brief, and all parties cite to this document in their briefing on appeal. The verbatim report of proceedings indicates that the trial court did not consider Manriquez to be acting as an interpreter; rather, the trial court simply allowed Manriquez to periodically assist Bernal Hernandez, who was testifying primarily in English, with his word choices.
IV
Bernal Hernandez next contends that the trial court erred by awarding to Glacier Fish the costs of transcribing the preservation deposition of one of Glacier Fish's expert witnesses. We disagree.
Bernal Hernandez also appealed from the trial court's award of costs for videotaping the preservation deposition of one of Glacier Fish's expert witnesses. The expenses of videotaping could not properly be taxed against Bernal Hernandez. CR 30(b)(8)(D). However, after Bernal Hernandez filed his briefing on appeal, a commissioner of this court granted Glacier Fish's motion to allow the trial court to revise its order awarding costs to remove this improperly-included expense. The trial court subsequently amended its order to remove this improperly-included expense. Accordingly, we do not address this issue further.
RCW 4.84.010 provides:
To the extent that the court or arbitrator finds that it was necessary to achieve the successful result, the reasonable expense of the transcription of depositions used at trial or at the mandatory arbitration hearing: PROVIDED, That the expenses of depositions shall be allowed on a pro rata basis for those portions of the depositions introduced into evidence or used for purposes of impeachment.
RCW 4.84.010(7). Based on his misquoting of the statute, Bernal Hernandez contends that, because the expert witness's deposition was not used for purposes of impeachment, the trial court was not authorized to award the expense of transcription for that expert witness's deposition. However, Bernal Hernandez ignores the relevant portion of the statute, which provides that the trial court may award " the reasonable expense of the transcription of depositions used at trial . . . on a pro rata basis for those portions of the depositions introduced into evidence or used for purposes of impeachment." RCW 4.84.010(7) (emphasis added). The expert witness's entire deposition was introduced into evidence, and Bernal Hernandez does not assert that the deposition was not necessary to the defendant's achievement of the successful result. The trial court did not abuse its discretion by imposing upon Bernal Hernandez the costs of the transcription of that deposition.
V
Glacier Fish requests an award of attorney fees on appeal on two bases: pursuant to CR 37(a)(4) and because the appeal is frivolous. Because Glacier Fish does not prevail on the issue of sanctions, it is not entitled to an award of attorney fees pursuant to CR 37(a)(4). Nor is the appeal frivolous.
Glacier Fish also requests an award of costs pursuant to RAP 14.2 as the substantially prevailing party on appeal. As between Bernal Hernandez and Glacier Fish, neither is a substantially prevailing party. Glacier Fish prevailed against Bernal Hernandez on each of the issues resolved in this opinion only because it caused a genuine error to be corrected prior to our disposition of the appeal. It would be unjust to allow Glacier Fish to recover costs as a prevailing party where such prevailing party status is obtained by rushing to remedy an error after an appeal has already been taken and the opening brief filed.
RAP 14.2 provides, in pertinent part, that
A commissioner or clerk of the appellate court will award costs to the party that substantially prevails on review, unless the appellate court directs otherwise in its decision terminating review. If there is no substantially prevailing party on review, the commissioner or clerk will not award costs to any party.
As between Evans and Glacier Fish, Evans is the prevailing party. As such, he is entitled to an award of costs on appeal. Upon proper application, a commissioner of this court will enter the necessary order.
We reverse the imposition of sanctions but affirm in all other respects.
In his briefing on appeal, Bernal Hernandez also contends that he was entitled to request a nonjury trial pursuant to the Jones Act. Our Supreme Court's holding that the plaintiff in a Jones Act, 46 U.S.C. § 30104, case tried in Washington state court "has no substantive right to a nonjury trial" is dispositive of this issue. Endicott v. Icicle Seafoods, Inc., 167 Wn.2d 873, 878, 224 P.3d 761 (2010), cert. denied, 130 S. Ct. 3482, 177 L. Ed. 2d 1059 (2010).