Carter v. Santos

Opinion

IN THE SUPERIOR COURT OF GUAM 2

3 NOELLA D. CARTER, )

CIVIL CASE 'NO.~&w£1-12 4

5 Plaintiff,

) ) )

e

vs. ) DECISION AND ORDER 6 )

GEORGE SANTOS 1, in his official capacity )

7 as COMMISSIONER OF THE GUAM )

8 WORKER'S COMPENSATION )

COMMISSION, CONTINENTAL )

9 MICRONESIA, and AMERICAN HOME ) 10 ASSURANCE COMPANY, )

)

11 Defendants. ) 12 INTRODUCTION

13 The Plaintiff filed her Application for a Preliminary Injunction and Memorandum o 14 Points and Authorities in Support thereof on Monday, May 7, 2012. The Application is mad 15 pursuant to Guam Rule of Civil Procedure 65(a) "to preliminarily enjoin enforcement of Gu 16 Worker's Compensation Order No.2012-0001, to preserve the status quo until this matter can b 17 adjudicated." (Application, 1, May 7, 2012.) The Commissioner's Opposition was filed o 18 September 13, 2012. Continental Micronesia and American Home Assurance Company file 19 their Opposition on January 24, 2013. On March 6, 2013 the court determined that the ora 20 argument on the Application was unnecessary and vacated the hearing set for March 7, 2013.

21 this decision, the court determines that the application should be denied.

22 BACKGROUND

23 The Plaintiff is an employee of Continental Airlines and was injured on December 10 24 2006 while assisting passengers stow and secure their luggage in preparation for flight departure.

25

26

1 27 Notice ofthe substitution of George Santos for Leah Beth 0, Naholowaa pursuant to Guam R. Civ. P. 25(d)(l) was

28 given in the Commissioner's Answer filed April9, 2012.

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The Compensation Order required payment to the Plaintiff of $6,000.00 to compensate for th

j

2 period of disability, $1,433.00 for medical expenses and $1,500.00 for Plaintiffs attorney's fee. 3 DISCUSSION

4 The parties agree that the Plaintiff "must show both irreparable harm and likelihood o 5 1 success on the merits" to obtain the Preliminary Injunction. Sule v. Guam Bd Of Examiners jo-1 II 6 Dentistry, 2011 Guam 5 ~ 21 (citing Hongkong and Shanghai Banking Corp., Ltd v. Kallingal 7 2005 Guam 13 ~ 18). 8 The Plaintiff asserts she will suffer irreparable harm because the Compensation Orde 9 limits what she is entitled to under the Guam Worker's Compensation law as to the weeki~ 10 compensation, the number of weeks of payment, and her attorney's fee. She also states that sh~ 11 was entitled to a penalty fee for Continental Micronesia's delay in controverting her claim. 12 In opposition the Defendants properly point out that in each of the grounds Plaintiff rest 13 upon, the relief sought is solely monetary; a reversal of the Compensation Order will give her th 14 relief she seeks. See, e.g., Sampson v. Murray, 415 U.S. 61, 90 (1974) (the possibility o 15 adequate compensatory relief in the ordinary course of litigation weighs heavily against a clai , 16 of irreparable harm); California Pharmacists Association v. Maxwell-Jolly, 563 F.3d 847, 851 17 (9th Cir. 2009) ("Typically, monetary harm does not constitute irreparable harm."); Sule, 2011 18 Guam 5 at~ 12 ("[I]rreparable harm typically focuses on categories of harm that do not easil 19 lend themselves to monetary compensation."); and Black's Law Dictionary, 856 (Rev. 9th Ed. 20 2009) (Irreparable injury is "[a]n injury that cannot be adequately measured or compensated b 21 money."). 22 The court concludes that the Plaintiff has failed to show that she will suffer irreparabl 23 harm if her Application is not granted. 24 The Plaintiff states that she will likely succeed on the merits because the Compensatio 25 Order's conclusion on each of the four grounds she relies upon is not in accordance with law 26 First, Plaintiff argues that the maximum weekly compensation of $250 does not reflect Guam' 27 present minimum wage for a 40-hour week. The opposing parties state that Guam's minimu 28 wage in 2007, for the period she was paid, was less than $250 for a 40-hour week.

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Second, the Plaintiff contests that the Order limits Plaintiff's compensation, in violatio 2 of 22 G.C.A. § 9107, to the period from July to December 2007 and not from the date of injur 3 which was December 2006. The opposing parties submitted deposition testimony that th 4 Plaintiff continued to work until January 21, 2007 at which time she was not allowed to wor 5 because of an incident (not related to her injury) that was being investigated. The investigatio 6 was completed on May 23,2007. 7 Third, the Plaintiff asserts that the attorney's fee award of 25% of the recovery i 8 arbitrary, unreasonable and capricious and an abuse of discretion on the part of the Commissio 9 because it is unrelated to the requested fee and not a result of a factual determination. Th 10 opponents contend that payment of the requested fee of $16,425.90 would reduce the availabl II compensation award; that Plaintiff's counsel failed to itemize the hours he worked on the case· 12 and that this is a simple case. 13 Fourth, the Plaintiff states that she is entitled to the 10% penalty fee because Continenta 14 Micronesia failed to controvert her February 28, 2007 notice of injury, citing 22 G.C.A. 15 9115(b) and the Compensation Order which states that the employer received the notice ofinjur 16 on March 2, 2007. The opponents contend that there is no penalty due because Plaintiff was no 17 placed on disability until July 2007. 18 The Court concludes that the Plaintiff has not shown that she will likely succeed on th 19 merits ofher claims. 20 CONCLUSION 21 Based upon the conclusions made on the issues of irreparable injury and the likelihood o 22 success, the Application for a Preliminary Injunction is denied. 23

24 SO ORDERED: June 6, 2013. 25

26

27 RICHARD H. BENSON Judge pro tempore, Superior Court of Guam 28

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