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Allegro Ventures, Inc. v. Almquist

United States District Court, Ninth Circuit

June 6, 2013



M. JAMES LORENZ, District Judge.

On August 31, 2011, Plaintiff Allegro Ventures, Inc. ("AVI") filed its complaint against Defendant Michael Almquist, seeking declaratory relief under general maritime law. This admiralty action arises out of a dispute concerning whether Defendant was employed as a seaman in service of Plaintiff's vessel when he suffered from a seizure that eventually led to the discovery of a malignant brain tumor. Now pending before the Court are the parties' cross-motions for summary judgment.

The Court found these motions suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). (Doc. 22.) For the following reasons, the Court DENIES Defendant's motion for summary judgment (Doc. 18), and DENIES Plaintiff's cross-motion for summary judgment (Doc. 29).


Plaintiff is incorporated in Nevada and owns the seventy-foot luxury motor yacht ALLEGRO ("M/Y ALLEGRO"). (Frey Decl. ¶ 2 [Doc. 29-2].) Plaintiff's President is Leo Frey, who is principally responsible for the ownership, operation, and maintenance of the M/Y ALLEGRO. ( Id. ) Defendant is a resident of Carlsbad, California, who works in the maritime industry and is licensed by the United States Coast Guard to operate up to 200-ton vessels for near-coastal voyages. (Almquist Decl. ¶¶ 1, 4 [Doc. 18-3].)

Since 1993, Defendant has been doing business as Almquist Yacht Management. (Almquist Dep., Vol. I, 63:17-20 [Doc. 29-7].) While using this fictitious business name, Mr. Almquist provides boat-maintenance and captain services to various yacht-owning clients in the Southern California area. (Almquist Decl. ¶ 4.) When servicing their yachts, Mr. Almquist charges clients an hourly rate plus expenses for all work performed on the vessels. ( Id. ¶ 10.) He also charges for his travel time if he is making an after-hours trip for a specific client. ( Id. ) Additionally, Mr. Almquist provides captain services to his clients at a flat rate of $300 per day, often for trips to Catalina Island or the area around San Diego Bay. ( Id. ¶ 7.) For several of these clients, he considered himself the "designated captain, " where he would have an agreement to regularly maintain and repair the client's luxury yacht as needed while it was docked, and then be available to take owners and guests out on voyages for his flat-rate fee. ( Id. ¶ 4.) Mr. Almquist provided a similar combination of these services to AVI over a period of approximately twelve years, and it is this relationship that forms the basis of this dispute.

A. Mr. Almquist's Connection with the M/Y ALLEGRO

Mr. Almquist's relationship with the M/Y ALLEGRO began in 1999 when he was enlisted by Mr. Frey to fly to Seattle and sail as the yacht's deckhand on its initial voyage to a boat show in Newport Beach, California. (Almquist Decl. ¶ 5.) Afterwards, Mr. Almquist personally drove the vessel to San Diego, California, where it has since been operated from. ( Id. ¶¶ 5-6). From the remainder of 1999 to November 2010, Mr. Almquist provided a mix of day-to-day captain and boat-maintenance services to AVI for the M/Y ALLEGRO. ( Id. ¶ 6.)

During this time period, Mr. Almquist had the keys to the M/Y ALLLEGRO and maintained the vessel on his own schedule. (Frey Decl. ¶ 10; Almquist Dep., Vol. I, 109:8-12.) He performed the maintenance work that he decided was necessary and then billed AVI accordingly. (Almquist Dep., Vol. II, 178:3-8.) These maintenance decisions included what type of oil to use in the yacht's engines, what kind of filters to buy, how to repair the water maker, when to moor the boat, how many fenders and lines to put out, and whether to add an extra spring line in case of a storm. ( Id. at 178:9-21.) Yet, if a significant maintenance task exceeded a threshold dollar amount, Mr. Almquist would need to obtain approval from Mr. Frey beforehand. (Frey Dep. 34:16-35.) Further, when the M/Y ALLEGRO was hauled out to a shipyard for repairs once every few years, Mr. Almquist would serve as the representative of the vessel and interact with the shipyard on AVI's behalf. ( Id. at 35:8-18.) He also enlisted various third parties to help him maintain the vessel, such as a diver to remove marine growth from the bottom of the boat. (Frey Decl. ¶ 11.) On these instances, Mr. Almquist would pay these other parties and then later be reimbursed by Mr. Frey. ( Id. )

Mr. Almquist provided his captain service to AVI on numerous occasions. (Almquist Decl. ¶ 6.) On these outings, he was usually required to wear a captain outfit and was referred to as the "the Captain" of the yacht. ( Id. ¶ 8.) Mr. Almquist on these occasions was paid his flat-rate fee, reimbursed for food, and provided with room and board when at sea overnight. ( Id. ¶ 9.) Through this service and his aforementioned maintenance work, Mr. Almquist estimates that he did "virtually all of the piloting, navigation, docking, and movement of the Allegro" from 1999-2010. ( Id. ¶ 6.) Moreover, he considered himself the "permanent regular captain" of the M/Y ALLEGRO, and he took Mr. and Mrs. Frey and their guests out on the yacht "hundreds of times during the 12 year period before [his] accident." ( Id. ) These voyages included a trip to Mexico with Mr. Frey, excursions to Catalina Island, and, more commonly, outings in and around San Diego Bay and Mission Bay. ( Id. ¶ 7.) Taking the period from 2004-2008 for example, Mr. Almquist's United States Coast Guard Small Vessel Sea Service Form lists a total of 361 days spent aboard the vessel with an average time underway of eight hours per day and an average distance offshore of ten miles. ( Id. Ex. 2.)

However, Mr. Almquist never signed an employment contract or maritime shipping articles with AVI. (Almquist Dep., Vol. I, 58:11-25.) As with his other clients, Mr. Almquist did not receive an annual or monthly salary for the services he provided to AVI. ( Id. at 90:8-10.) He was not issued a W-2 earnings form from AVI, and AVI did not withhold income tax or take social security deductions from the sums it paid to Mr. Almquist. (Frey Decl. ¶ 6; Almquist Dep., Vol. I, 91:20-24.) From 1999-2010, AVI also employed four other individuals as captains to take the M/Y ALLEGRO out when Mr. Almquist had a conflict in his schedule. (Frey Dep. 22:15-23:8.) Further, Mr. Almquist states that he is self-employed, but that he also considered himself employed by AVI at the time of his accident. (Almquist Dep., Vol. I, 11:18-22, 122:17-123:4.)

B. The Accident

On Thursday, November 18, 2010, Mr. Almquist delivered the M/Y ALLEGRO to the Shelter Island Boat Yard at the request of Mr. Frey for the vessel to be hauled out to receive its biennial shipyard maintenance. (Almquist Decl. ¶ 13.) Mr. Almquist also returned to the shipyard the next day for a few hours to check on the status of the haulout work. ( Id. ) Because Mr. Frey wished to discuss what work was going to be performed on the vessel, he scheduled a meeting with Mr. Almquist to meet him at the boatyard over the weekend. ( Id. ¶ 14.) Mr. Almquist agreed to meet Mr. Frey but planned to bill AVI for all of his driving and meeting time because Sunday was not a traditional work day for him. ( Id. ¶ 15.)

On that following Sunday, November 21, 2010, Mr. Almquist left his home in Carlsbad at approximately 9:30 a.m. to meet Mr. Frey at the boatyard. ( Id. ) While heading south on the Interstate Five highway, Mr. Almquist suffered a "seizure-like episode" and lost consciousness, crashing his pickup on the side of the freeway. ( Id. ) Emergency services transported Mr. Almquist to a hospital where he was treated for his injuries. ( Id. ¶ 16.)

While receiving treatment, a brain scan was undertaken to discover the cause of the seizure. (Almquist Decl. ¶ 16.) It revealed a small lesion in Mr. Almquist's left parietal lobe. ( Id. ) Initially, doctors believed that the lesion may be some type of cerebral parasite. ( Id. ) However, on May 13, 2011, a craniotomy was performed to remove the lesion, and subsequent lab analysis determined that the lesion was a metastatic melanoma brain tumor. ( Id. ) A second tumor was later discovered in Mr. Almquist's right lung. ( Id. ) Mr. Almquist has since undergone chemotherapy and has accrued in excess of $700, 000 in medical expenses relating to his automobile injuries and cancer treatments. ( Id. 18.) AVI initially paid Mr. Almquist's medical expenses for the craniotomy and lung biopsy after being informed that Mr. Almquist was possibly infected with a parasite while working for AVI. ( Id. ¶¶ 16, 18.) But after discovery of the melanoma, a dispute has arisen concerning whether AVI is responsible for paying any further medical bills. ( Id. ¶ 18.)

On August 31, 2011, AVI commenced this action against Mr. Almquist. In the complaint, AVI asserts two claims for relief. First, AVI seeks a declaratory judgment stating that Mr. Almquist was not employed as a seaman in service of the M/Y ALLEGRO and therefore is not entitled to maritime maintenance-and-cure benefits. (Compl. ¶¶ 15-18.) Second, AVI seeks a judicial declaration that there is no connection between the medical conditions that Mr. Almquist is currently being treated for and what was originally reported to AVI by Mr. Almquist. ( Id. ¶ 20.) Mr. Almquist responded with a demand for a jury trial and two counterclaims for: (1) maintenance-and-cure benefits from AVI, and (2) the willful and arbitrary failure of AVI to pay maintenance and cure. (Answer ¶¶ 8-18 [Doc. 4].)

Mr. Almquist now moves for summary judgment on the complaint for declaratory relief, asserting that he was employed by AVI as a seaman in service of the M/Y ALLEGRO at the time of his accident as a matter of law. (Def.'s Mot. 13:24-14:2.) AVI responds with its own motion for summary judgment, arguing that the undisputed facts show that Mr. Almquist was both not ...

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