Zion v Nakayama [2005] FMSC 36; 13 FSM Intrm. 310 (Chk. 2005) (4 July 2005)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as Zion v Nakayama, [2005] FMSC 36; 13 FSM Intrm. 310 (Chk. 2005)

HERWIN ZION et al.,
Plaintiffs,

vs.

TOS NAKAYAMA, in his official capacity as
the Director of the Department of
Transportation, and STATE OF CHUUK,
Defendants.

CIVIL ACTION NO. 2004-1012

ORDER

Dennis K. Yamase
Associate Justice

Decided: July 4, 2005

APPEARANCES:

For the Plaintiff:
Repeat Samuel, trial counselor
Midasy Aisek, Esq. (supervising attorney)
Camillo Noket, Esq. (supervising attorney) (on motion)
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942

For the Defendants:
Joses Gallen, Esq.
Assistant Attorney General
Office of the Chuuk Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

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HEADNOTES

Civil Procedure - Motions
Failure to oppose a motion is generally deemed a consent to the motion, but even if there is no opposition, the court still needs good grounds before it can grant the motion, which must be well grounded in law and fact. Zion v. Nakayama, [2005] FMSC 36; 13 FSM Intrm. 310, 312 (Chk. 2005).

Admiralty; Jurisdiction - Exclusive FSM Supreme Court
A case involving the hazardous duty pay claims of fifty-eight port operators and seamen employed by the defendants on Federated States of Micronesia Class III vessels comes before the FSM Supreme Court on the court’s exclusive jurisdiction in admiralty and maritime cases. Zion v. Nakayama, [2005] FMSC 36; 13 FSM Intrm. 310, 312 (Chk. 2005).

Civil Procedure - Summary Judgment
The court, viewing the facts presented and inferences made in the light most favorable to the nonmoving party, must deny a summary judgment motion unless it finds there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The moving party has the burden of showing a lack of triable issues of fact, and a plaintiff, in order to succeed on a summary judgment motion, must also overcome all affirmative defenses that the defendant has raised. Zion v. Nakayama, [2005] FMSC 36; 13 FSM Intrm. 310, 312 (Chk. 2005).

Civil Procedure - Summary Judgment
When a party’s summary judgment motion has been denied as a matter of law and it appears that the nonmoving party is entitled to judgment as a matter of law, the court may grant summary judgment to the nonmoving party in the absence of a cross motion for summary judgment if the original movant has had an adequate opportunity to show that there is a genuine issue and that his nonmoving opponent is not entitled to judgment as a matter of law. Zion v. Nakayama, [2005] FMSC 36; 13 FSM Intrm. 310, 313 (Chk. 2005).

Civil Procedure - Summary Judgment
On a summary judgment motion, while the asserted previous practice, if true (and it has not been proven), is some evidence that the plaintiffs’ duties were hazardous, it is not sufficient to show that there is no genuine issue of material fact that their duties, for all hours worked, entailed unusual and extreme hazards entitling them to the hazardous pay differential. It thus remains a factual issue for trial whether each plaintiff’s duties entailed unusual and extreme hazards and whether those hazards involved part or all of that plaintiff’s hours worked and summary judgment will be denied on this issue. Zion v. Nakayama, [2005] FMSC 36; 13 FSM Intrm. 310, 313 (Chk. 2005).

Contracts - Damages; Torts - Damages - Punitive
Punitive damages will be denied when the plaintiffs’ complaint makes no allegations that the defendants’ actions were willful, wanton, or malicious or alleges facts that could constitute willfulness, wantonness, or malice, and when the cause of action is contract. Punitive damages are not a contract remedy since only compensatory damages are allowed for breach. Zion v. Nakayama, [2005] FMSC 36; 13 FSM Intrm. 310, 313 (Chk. 2005).

Contracts - Damages; Sovereign Immunity - Chuuk; Torts - Damages - Punitive
A plaintiff may not as a matter of law recover punitive damages from the State of Chuuk. This principle has been modified somewhat by the enactment section 6 of the Chuuk State Sovereign Immunity Act of 2000, but that Act did not become law until January 25, 2001, and it does not apply to damage claims before that time. Zion v. Nakayama, [2005] FMSC 36; 13 FSM Intrm. 310, 314 (Chk. 2005).

Civil Procedure - Summary Judgment;
When the moving plaintiffs are denied summary judgment as a matter of law and the non-moving defendants are entitled, as a matter of law, to summary judgment that they are not liable to the plaintiffs for punitive damages even if they are liable for the underlying cause of action and since the plaintiffs have had an adequate opportunity to show that the defendants were not entitled to judgment as a matter of law, the defendants are granted summary judgment that they are not liable for punitive damages. Zion v. Nakayama, [2005] FMSC 36; 13 FSM Intrm. 310, 314 (Chk. 2005).

Statutes of Limitation
The statute of limitations on contract or unpaid wage claims is six years. Zion v. Nakayama, [2005] FMSC 36; 13 FSM Intrm. 310, 314 (Chk. 2005).

Civil Procedure - Summary Judgment; Statutes of Limitation
When the plaintiffs have not put forward any grounds that could toll the running of the statute of limitations although they have had an adequate opportunity to do so since the defendants’ answer put them on notice that the statute of limitations defense would be asserted and when the plaintiffs were thus not prejudiced by the defendants’ failure to bring a separate motion asserting the defense because they had been on notice that they would be required to show why or which of their claims would not be barred by the statute of limitations, summary judgment for the defendants will be granted on the issue of statute of limitations. Zion v. Nakayama, [2005] FMSC 36; 13 FSM Intrm. 310, 314 (Chk. 2005).

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COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

On June 6, 2005, the plaintiffs filed their Motion for Summary Judgment. The plaintiffs contend that there are no genuine issues of material fact concerning the availability of punitive damages; whether the plaintiffs are entitled by law to hazardous duty pay; and whether the statute of limitations, as affirmatively pled by the defendants, bars any or all of the plaintiffs’ claims and whether the plaintiffs are prejudiced by the defendants’ failure to raise the issue by motion by August 16, 2004 as per the court’s July 21, 2004 order, and they ask for partial summary judgment.

No opposition to the motion has been filed. Failure to oppose a motion is generally deemed a consent to the motion. Naoro v. Walter, [2003] FMSC 17; 11 FSM Intrm. 619, 621 (Chk. 2003); FSM Civ. R. 6(d). But even if there is no opposition, the court still needs good grounds before it can grant the motion, Senda v. Mid-Pacific Constr. Co., [1994] FMSC 20; 6 FSM Intrm. 440, 442 (App. 1994), and the motion must be well grounded in law and fact, In re Parcel No. 046-A-01[1993] FMSC 30; , 6 FSM Intrm. 149, 153 (Pon. 1993).

The plaintiffs’ motion is denied. Additionally, the defendants are granted summary judgment on the issues of punitive damages and statute of limitations. The court’s reasons follow.

I. Background

This case involves the hazardous duty pay claims of fifty-eight port operators and seamen employed by the defendants on Federated States of Micronesia Class III vessels for the years 1994 through 2000. It comes before the court on the court’s exclusive jurisdiction in admiralty and maritime cases. FSM Const. art. XI, § 6(a); see al> Lonno vnno v. Trust Territory (I), 1 FSM Intrm. 53, 68-71 (Kos. 1982) (a seaman’s contract claim against ther of essel upon which he served falls within the FSM Supreme Court’s exclusive aive admiradmiralty and maritime jurisdiction); Robert v. Sonis, 11 FSM Intrm. 31, 33 (Chk. S. Ct. Tr. 2002) (cases involving seamen’s wage claims are maritime cases; jurisdiction over admiralty and maritime cases resides exclusively with the FSM Supreme Court trial division).

II. Summary Judgment Standards

The court must deny a summary judgment motion unless it finds there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Adams v. Etscheit, [1994] FMSC 52; 6 FSM Intrm. 580, 582 (App. 1994). The court must view the facts presented and inferences made in the light most favorable to the nonmoving party and the moving party has the burden of showing a lack of triable issues of fact. Id. In order to succeed on a summary judgment motion, a plaintiff must also overcome all affirmative defenses that the defendant has raised. Lee v. Lee, [2004] FMSC 31; 13 FSM Intrm. 68, 71 (Chk. 2004); FSM Dev. Bank v. Arthur, [2001] FMSC 18; 10 FSM Intrm. 293, 294 (Pon. 2001).
However, when a party’s summary judgment motion has been denied as a matter of law and it appears the nonmoving party is entitled to judgment as a matter of law, the court may grant summary judgment to the nonmoving party in the absence of a cross motion for summary judgment if the original movant has had an adequate opportunity to show that there is a genuine issue and that his nonmoving opponent is not entitled to judgment as a matter of law. Truk Continental Hotel, Inc. v. Chuuk, [1994] FMSC 35; 6 FSM Intrm. 310, 311 (Chk. 1994).

III. Discussion

The plaintiffs have moved for summary judgment on three issues: 1) that they are entitled to hazardous duty pay, 2) that they are entitled to punitive damages, and 3) that the defendants’ affirmative defense of the statute of limitations does not apply.

A. Hazardous Duty Pay

The plaintiffs contend that they are entitled to hazardous duty pay because state law provides that "[a]n employee who performs work which entails unusual and extreme hazards to his health or safety shall be paid a differential of twenty-five percent of the adjusted base salary for all hours in which hazardous work is performed." Truk S.L. No. 3-43, § 17(5)They assert that they they were paid the hazardous duty differential before 1994 and that, since they continued to perform the sork thereafter, it is proven that they are entitled to the hazardous duty pay.

>

While the asserted previous practice, if true (and it has not been proven), is some evidence that the plaintiffs’ duties were hazardous, it is not sufficient to show that there is no genuine issue of material fact that their duties, for all hours worked, entailed unusual and extreme hazards entitling them to the hazardous pay differential. It remains a factual issue for trial whether each plaintiff’s duties entailed unusual and extreme hazards and whether those hazards involved part or all of that plaintiff’s hours worked. Summary judgment is denied on the issue of hazardous pay differential.

B. Punitive Damages

The plaintiffs contend that they are entitled to punitive damages because "punitive or exemplary damages are awarded as punishment for the willfulness, wantonness, malice, or other aggravation of the defendant’s wrong to the plaintiff, over and above full compensation for the injuries directly or indirectly resulting from that wrong." For this proposition they cite Kessel v. Leavitt, 511 S.E.2d 720 (W. Va. 1998).

The plaintiffs’ complaint, however, makes no allegations that the defendants’ actions were willful, wanton, or malicious or allege facts that could constitute willfulness, wantonness, or malice. The West Virginia case they cite in support of punitive damages was a tort action for fraud. The plaintiffs’ causes of action are wage - contract - claims.

Punitive damages are not an independent cause of action, but must rest upon some other, underlying cause of action since they are merely an element of damages in that cause of action. Semwen v. Seaward Holdings, Micronesia, [1995] FMSC 17; 7 FSM Intrm. 111, 113 (Chk. 1995). In this case, that cause of action is contract. But punitive damages are not a contract remedy since only compensatory damages are allowed for breach. Kelly v. Lee, [2002] FMSC 27; 11 FSM Intrm. 116, 117 (Chk. 2002) (no punitive damages awardrable in maritime employment contract case); see also Amayo v. MJ Co., [2001] FMSC 10; 10 FSM Intrm. 244, 249 (Pon. 2001) (punitive damages not a contract remedy); cf. 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 5-17 (1994)itive damages maes may be available in personal injury and property damage cases; but generally unavailable to seamen).

Furthermore, a plaintiff may not as a matter of law recover punitive damages from the State of Chuuk. 6 TTC 253; Atesom v. Kukkun, [2001] FMSC 51; 10 FSM Intrm. 19, 24 (Chk. 2001); Kaminaga v. Chuuk, [1995] FMCSC 7; 7 FSM Intrm. 272, 274 (Chk. S. Ct. Tr. 1995). Although this principle has been modified somewhat by the enactment section 6 of the Chuuk State Sovereign Immunity Act of 2000, Chk. S.L. No. 5-01-39, that Act did not become law until January 25, 2001, which is after the time periods for which the plaintiffs claim damages and thus cannot apply to this case. Herman v. Municipality of Patta, [2003] FMSC 66; 12 FSM Intrm. 130, 138 (Chk. 2003).

The moving plaintiffs are therefore denied summary judgment as a matter of law. The non-moving defendants are entitled, as a matter of law, to summary judgment that they are not liable to the plaintiffs for punitive damages even if they are liable for the underlying cause of action. Since the plaintiffs have had an adequate opportunity to show that the defendants were not entitled to judgment as a matter of law, the defendants are granted summary judgment that they are not liable for punitive damages.

C. Statute of Limitations

The plaintiffs contend that the statute of limitations does not apply to their case and that they are prejudiced because, although the defendants pled the affirmative defense of statute of limitations in their answer, they did not file a motion, as directed by the court, to raise and resolve the issue at an early stage. They contend that by the defendants’ failure to raise the issue by motion and their failure to comply with the court’s discovery rules and orders the defendants have acquiesced that the plaintiffs are entitled to judgment as a matter of law.

In order to prevail on a summary judgment motion, the plaintiffs must overcome any affirmative defenses pled by the defendants. The defendants pled the statute of limitations as an affirmative defense. The statute of limitations on contract or unpaid wage claims is six years. 6 TTC 305.[1] The plaintiffs have not put forward any grounds that could toll the running of the statute of limitations although they have had an adequate opportunity to do so since the defendants’ answer put them on notice that the statute of limitations defense would be asserted. The plaintiffs are thus not prejudiced by the defendants’ failure to bring a separate motion asserting the defense. They have been on notice that they would be required to show why or which of their claims would not be barred by the statute of limitations.

This case was filed on July 8, 2004. Therefore, applying the six-year statute of limitations, any of the plaintiffs’ claims that are for wages that they assert were due and payable and unpaid before July 8, 1998 (in other words, that accrued by July 8, 1998) are barred by the statute of limitations as a matter of law.

According to the plaintiffs’ complaint, the following plaintiffs’ claims end before fiscal year 1998: Pat Kisan, Lifang Pulusou, Minoru Kuka, Elias Andon, Simion Simina, Nachuo Francis, and Asaki Boone. Plaintiffs Sichimichy Kichiro, Simiron Aritos, Sanres Cheipot, and Stevenson Kichiro have claims that end some time in fiscal year 1998, but whether they have any claims that accrued after July 8, 1998 is unclear. The court will entertain a motion to dismiss those plaintiffs whose claims are barred by the statute of limitations. The rest of the plaintiffs appear either to have claims that accrued both before and after July 8, 1998 or that only accrued after that date.

IV. Conclusion

The plaintiffs’ summary judgment motion on the issues of whether the plaintiffs are entitled to hazardous duty pay, to punitive damages, and that their claims are not barred by the statute of limitations is denied. The defendants are granted summary judgment that they are not liable for punitive damages and that claims for hazardous duty pay that accrued before July 8, 1998 are barred by the statute of limitations.

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^[1] The Chuuk State Sovereign Immunity Act of 2000 retains this six-year limitation. Chk. S.L. No. 5-01-39, § 11.