When an injured employee worked for multiple employers, questions about liability can arise. If the employee’s multiple employers were all maritime or Defense Base Act employers, then the last responsible employer rule is applied. But, what happens when the employee worked for employers covered by the Longshore Act or DBA as well as non-covered employers?
Last Responsible Employer or Last Responsible Covered Employer?
In a Longshore and Harbor Workers’ Compensation Act claim, the last responsible employer rule assigns liability to the employer who last exposed the injured worker to injurious stimuli. The last employer in time is the first employer in liability. If the last employer can exculpate itself from liability, then the second most recent employer will be liable unless it can exculpate itself too. And so on.
Most of the time, courts address the last responsible employer rule vis a vis multiple maritime employers. That is, a longshore worker might switch from maritime job to another. After the worker has an injury, the employers must then figure out which of them is liable.
Sometimes issues arise when the employee goes from covered work to non-covered work. In that case, the last responsible employer rule is called the “last responsible maritime employer” or “last responsible covered employer” rule. By “covered,” courts mean “covered” by the protections of the Longshore Act. In cases involving the “last responsible covered employer,” the maritime employer can be found liable for the claimant’s injuries even though the claimant engaged in subsequent employment not covered by the Longshore Act where they were exposed to the same injurious stimuli.
History of the Last Responsible Employer Rule:
The last responsible employer rule comes from a Second Circuit case, Cardillo, decided in 1955. See Travelers Ins. Co. v. Cardillo, 225 F.2d 137, 145 (2d Cir.), cert. denied, 350 U.S. 913 (1955). The Cardillo court decided that, in a situation where two Longshore Act employers may be responsible for a work-related injury or disease, the last employer is completely liable. To quote Cardillo:
Congress intended that the employer during the last employment in which the claimant was exposed to injurious stimuli, prior to the date upon which the claimant became aware of the fact that he was suffering from an occupational disease arising naturally out of his employment, should be liable for the full amount of the award.
Cardillo based this reasoning on legislative history. The whole purpose of the last responsible employer rule is to provide for the fast and efficient payment of workers’ compensation benefits to an injured worker. Congress wanted to avoid “the difficulties and delays which would inhere in the administration of the [Longshore] Act if employers and carriers were made to apportion liability among several responsible employers. In other words, apportionment is bad because it causes delays.
The last responsible employer rule is easy enough to apply with respect to successive maritime employers. But, like I said above, problems can arise when an injured worker’s maritime employment was followed by employer not covered by the Longshore Act.
Application of the Last Responsible Covered Employer Rule:
The last responsible covered employer rule was developed to address the problem of subsequent non-covered employment. Essentially, the rule states that the last employer covered by the Longshore Act that exposed the injured worker to injurious stimuli is liable for the full amount of a Longshore award no matter whether a subsequent non-covered employer also exposed the injured worker to injurious stimuli.
The caselaw demonstrates the application of the last covered employer rule. In Todd Shipyards Corp. v. Black, 717 F.2d 1280 (9th Cir. 1983), the injured worker had been employed as a welder for Todd Shipyards from 1942 to 1943. During those three years, he was exposed to significant amounts of asbestos. The injured worker left Todd and, after several years at various outdoor jobs, began to work for Boeing Aircraft Corporation. He worked at Boeing from 1951 to 1977, and during that time he was exposed to asbestos “off and on.”
On appeal, the Ninth Circuit addressed the last responsible employer rule as it applied to subsequent stateside employment. Citing Cardillo, state workers’ compensation schemes, and legislative history, the Black court determined that Todd was liable even though the injured worker had not worked for Todd in over 30 years. Why? Because Todd was the last employer in time that was covered by the Longshore Act. It could not escape liability by pointing to a subsequent non-covered employer that may have also contributed to the employee’s injury. And it could not escape liability by urging apportionment between the covered and subsequent non-covered employer:
Apportionment of liability between Todd and Boeing is not authorized by the [Longshore Act]. Cordero v. Triple A Machine Shop, 580 F.2d at 1337. The same concern for expeditious and efficient compensation that caused Congress to proscribe apportionment among covered employers precludes apportionment between a covered and non-covered employer. Congress’ goal was to assure full compensation to industrially injured workers and to remove from [Longshore Act] claimants the burden and delay inherent in litigating complex issues of proportionate liability. During hearings on the [Longshore Act], Congress rejected an employer-sponsored suggestion that liability should be apportioned, Hearing of Committee on the Judiciary of the House of Representatives, on H.R. 9498, 69th Cong., 1st Sess., April 8, 15, 22, 1926, precisely because “of the overriding importance of efficient administration of the act. Cardillo, 225 F.2d at 145.
Other courts have also cited efficiency as a basis for using the last responsible covered employer rule to assign full liability to an earlier covered employer. In Newport News Shipbuilding and Dry Dock Co. v. Stilley, 243 F.3d 179 (4th Cir. 2001), the Fourth Circuit addressed a case with facts that were strikingly similar to Black. The Stilley employee had worked at Newport News as an electrician’s helper for nearly 9 months in the 1950s. During his employment, he was exposed to airborne asbestos. After leaving Newport News, he spent yearly 30 years working as an electonics technician at NASA. Again, the injured worker was exposed to asbestos. Newport News–his employer of 9 months–was covered by the Longshore Act, but NASA–his subsequent employer of 30 years–was not.
Newport News argued to the Fourth Circuit that NASA, the subsequent, non-maritime employer should be fully liable for the employee’s injury. The Fourth Circuit refused. Just like the Ninth Circuit, the Fourth Circuit was impressed by Congress’ desire to create a workers compensation system that ran quickly and efficiently:
The last maritime employer rule is justified by the same congressional purpose that brought about the last employer rule. Specifically, the prompt and simplified processing of compensation claims. If we were able to reject the last maritime employer rule, the potential problems that prompted the last employer rule decades ago would now ripen into real ones. [Longshore Act] benefit awards would be delayed in occupational disease claims while maritime employers attempted to prove that subsequent, non-maritime employers were responsible for a percentage of the liability. Indeed, attempting to apportion liability would present difficult problems of proof for both parties, the employer and the injured worker. These problems would be particularly acute in cases of asbestos-related disease, which often develops over a long latency period. . . . We agree with the Director that rejection of the last maritime employer rule would bring intractable problems to claims administration. Without the rule the claims process would surely become more complicated, protracted, and expensive.
Congress wanted the Longshore Act to be a “prompt and uncomplicated claims process.” If a maritime employer wants to avoid any and all liability for a work related injury, then the employer should “not expose their employees to disease causing conditions.” If the injured worker arose exclusively from subsequent employment, then the maritime employer would not be liable. But, if the covered employment contributed to the employee’s disease, then the covered employer is liable no matter the existence of injurious exposure at a subsequent non-covered employer.
So, the reason for the last responsible covered employer rule is readily apparent. Congress wanted the Longshore Act to provide a prompt, uncomplicated claims process where the injured worker received benefits without undue complication, expense, or protracted litigation.
The Last Responsible DBA-Covered Employer:
Although this issue typically arises in Longshore Act claims, the last responsible covered employer applies equally to Defense Base Act claims. The Defense Base Act is an extension of the Longshore Act. The provisions of the Longshore Act apply except for the few instances specifically addressed by the Defense Base Act. See, e.g., 42 U.S.C. § 1652(a) (excluding the minimum compensation rate established by the Longshore Act).
Defense Base Act claims often involve last responsible employer or last responsible carrier issues. DBA employers often jump from carrier to carrier, following lower premiums. Thus, last responsible carrier issues are created for employees who worked over multiple insurance coverage periods–even though the employee had no idea that the DBA insurance coverage changes were happening behind the scenes.
For the same reasons that the last responsible covered employer rule applies to Longshore claims, it also applies to DBA claims. The last responsible covered employer rule is applied to Longshore cases to advance Congress’ purpose in enacting the Longshore Act in the first place: a simple, uncomplicated claims process. Being an extension of the Longshore Act, it is entirely reasonable to apply the last responsible covered employer rule to Defense Base Act claims too. Therefore, unless the DBA employer can show that it did not contribute whatsoever to the injured worker’s injury–including psychological injuries–it should not be able to shift liability to a subsequent non-covered employer.
Attribution: Photo courtesy of Flikr user Michael Coghlan.
Invitation: If you are having a coverage issue in your Longshore or Defense Base Act claim, feel free to contact Jon Robinson at (844) 322-2667 or [email protected] for a free initial case evaluation.