Plaintiff was employed as a crane operator by Defendant, which was both the vessel owner and the contractor of a crane. The crane developed an open and obvious hydraulic fluid leak, and Plaintiff complained to supervisors about the leak, which covered areas of the vessel that were within the crane’s swing radius. Later, Plaintiff slipped on the crane’s tracks, injuring his back. He blamed the injury on a black spot of hydraulic fluid. Defendants paid Longshore and Harbor Workers’ Compensation Act (“LHWCA”) benefits, and Plaintiff then sued Defendant (in its capacity as the vessel owner) for negligence. The federal district court granted Defendant’s motion for summary judgment, finding that Defendant had not breached its duties under Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981). Plaintiff appealed. A dual-capacity employer acts as both employer and vessel owner. This presents a problem because if the “employer” is negligent, then LHWCA compensation payments are the employee’s exclusive formRead more
Eleventh Circuit Defines “Navigable Waters”
The Eleventh Circuit answered a question “almost as old as the doctrine of admiralty jurisdiction itself.” The question: what are navigable waters? According to the Eleventh Circuit, “a waterway is navigable for admiralty-jurisdiction purposes if, in its present state, it is capable of supporting commercial activity.” The Eleventh Circuit begrudgingly stated that it was bound by prior precedent, Richardson v. Foremost Ins. Co., 641 F.2d 314 (5th Cir. 1981). In Richardson, the Fifth Circuit addressed whether a tort claim based on a collision between two pleasure boats on a waterway that was “seldom, if ever, used for commercial activity” fell within the federal courts’ admiralty jurisdiction. 641 F.2d at 315–16. The court noted that for admiralty jurisdiction to exist in a tort case, two requirements must be met: (1) there must be a significant relationship between the alleged wrong and traditional maritime activity (the nexus requirement) and (2) the tortRead more
The Fifth Circuit Explains the Application of Maritime Law to Jack-Up Rigs and Removal of OCSLA Claims
After watching his friend and co-worker die as a result of an accident on a jack-up rig attached to the Outer Continental Shelf (“OCS”), Plaintiff filed suit in a Texas state court. Plaintiff conceded that he did not sustain a physical injury, but he alleged to have suffered severe emotional distress from witnessing his friend’s death. Further, the emotional distress caused physical problems. In response to Plaintiff’s state court lawsuit, Defendants removed the action to the United States District Court for the Southern District of Texas under the federal question jurisdiction of the Outer Continental Shelf Lands Act (“OCSLA”). The federal district court then determined that Plaintiff could not recover under either Texas law or maritime law and granted Defendants’ motion for summary judgment. Plaintiff appealed the district court’s decision and the Fifth Circuit affirmed. The “difficult question” the court had to answer was “whether federal, state, or maritime law provides theRead more
FECA Bulletin No. 13-01…and the Pending Decline in Lump Sum Settlements for DBA/WHCA Claims
On January 29, 2013, the Division of Federal Employees’ Compensation (“DFEC”) published FECA Bulletin No. 13-01. This Bulletin will change how we all administer or adjudicate Defense Base Act (“DBA”) claims with a War Hazards Compensation Act (“WHCA”) component (which I refer to as DBA/WHCA claims). The Bulletin states: Subject: Reimbursement of Unallocated Claims Expenses for Defense Base Act (DBA) settlements under the War Hazards Compensation Act (WHCA), and Allocating Payments in a DBA Settlement of Multiple Injuries for Purposes of Reimbursing only WHCA-Covered Injuries Background: The DBA provides a workers’ compensation system for workers injured or killed while performing work for government contractors outside the United States. 42 U.S.C. 1651(a). Employers and carriers (E/Cs) are liable to pay periodic compensation and medical benefits to an injured employee or death benefits to his/her survivors. The DBA, by incorporating most provisions of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. 901-950 (LHWCA), also permitsRead more
Common Law Tort Claims Preempted by the DBA’s and LHWCA’s Exclusivity Provisions
Claimant was injured in a roadside bomb attack. The employer and carrier paid medical and indemnity benefits pursuant to the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) as extended by the Defense Base Act (“DBA”). In addition, Claimant filed a federal civil lawsuit against the employer and carrier asserting common law claims for breach of contract, breach of fiduciary duty, fraud, and conspiracy to defraud. In his complaint: Nadheer alleged that, before his transfer to Erbil, he had requested transfer to a hospital in Jordan and that his insurance provider had denied this request. He claimed that this violated a provision in the LHWCA that allows patients to select their own physicians and that he was never informed of this and various other rights of his under the LHWCA. He further asserted that, as a result of deficient medical treatment he received in Erbil, he had suffered horrific pain andRead more
SCOTUS Issued Summary Disposition Reversing A Casino Boat Case
Yesterday the Supreme Court of the United States (“SCOTUS”) issued a summary disposition in Lemelle v. St. Charles Gaming Co., Inc. We previously discussed Lemelle here. Briefly, in Lemelle, an intoxicated patron fell down the stairs of the M/V CROWN CASINO, a riverboat casino. The plaintiff filed suit seeking damages under general maritime law, which he argued preempted a Louisiana statute limiting liability for loss connected with the service of alcoholic beverages. The dispute became one of vessel status. The Court of Appeal of Louisiana, Third Circuit, determined that the casino riverboat was not a vessel. Interestingly, Louisiana’s Third Circuit cited to a prior federal Fifth Circuit opinion that discussed how the casino was only “theoretically” capable of maritime transport. De La Rosa v. St. Charles Gaming Co., 474 F.3d 185, 187 (5th Cir. 2003). But Louisiana’s Third Circuit did not stop there. It also determined that the CROWN was “practically” incapableRead more
Virginia: Punitive Damages are Not Allowed in a Section 905(b) Action
During his eleven-year tenure as a ship repair staff supervisor, Mr. Minton was exposed to asbestos. Sixteen years after his employment ended, he was diagnosed with malignant mesothelioma, a form of cancer caused by exposure to asbestos. Minton filed a Section 905(b) claim and the jury awarded him $12,000,000 in compensatory damages, $430,963.70 in medical expenses, plus punitive damages in the amount of $12,500,000 (which was later reduced to $5,000,000). One of the issues on appeal was whether Section 905(b) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) allows the award of punitive damages. Although the Supreme Court of Virginia recognized that some courts have allowed punitive damages, it flatly rejected any interpretation of Section 905(b) in favor of punitive damages. The plain language of the statute limited the remedies available for a negligence action to those included within the terms of the statute. Because “punitive damages are not a remedyRead more
SCOTUS Decided Lozman: The House-Like Floating Structure Was Not a Vessel
Here is the Court’s syllabus in Lozman v. City of Riviera Beach, Florida. We will have more analysis of this opinion in the coming weeks. Petitioner Lozman’s floating home was a house-like plywood structure with empty bilge space underneath the main floor to keep it a float. He had it towed several times before deciding on a marina owned by the city of Riviera Beach (City). After various disputes with Lozman and unsuccessful efforts to evict him from the marina, the City brought a federal admiralty lawsuit in rem against the floating home, seeking a lien for dockage fees and damages for trespass. Lozman moved to dismiss the suit for lack of admiralty jurisdiction. The District Court found the floating home to be a “vessel” under the Rules of Construction Act, which defines a “vessel” as including “every description of watercraft or other artificial contrivance used, or capable of beingRead more
Ninth Circuit Says AWW Must Be Determined At the Time of Injury and Without Reference to Post-Employment Plans
In a brief Memorandum Opinion, the Ninth Circuit determined that a Defense Base Act claimant’s average weekly wage must be determined at the time of injury, even if Claimant planned to return stateside after his overseas employment. Here, Employer argued that the Benefits Review Board (“BRB”) should not have overturned the Administrative Law Judge’s factual determination that Claimant planned to cease his overseas employment. The Ninth Circuit agreed with the BRB that the Claimant’s plan to cease his employment was irrelevant. Section 2 of the Longshore and Harbor Workers’ Compensation Act provides that a disability is the “incapacity because of injury to earn the wages to which the employee was receiving at the time of injury in the same or any other employment.” The “at the time of injury” language controlled and made the Claimant’s subsequent plans irrelevant. Blackwater Security Consulting, LLC v. Dir., OWCP, No. 11-71587 slip op. (9thRead more
DOL Proposes Revisions to Rules of Practice Before the Office of Administrative Law Judges
The Department of Labor (“DOL”) has proposed to revise the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges. The Rules were enacted in 1983, but they have not been amended like the Federal Rules of Civil Procedure (“FRCP”). The DOL’s proposed changes are designed to reflect the changes in litigation and discovery over the past 28 years, provide clarity through the use of consistent terminology, and adequately address the expanded roles of Administrative Law Judges (“ALJ”). Congress has tasked ALJs with handling a wider variety of cases than anticipated when the Rules were promulgated in 1983 (including whistleblower and workplace retaliation cases), and the proposed revisions address the “more structured management and oversight” necessary to manage the complexities of these claims. Having thumbed through the changes, it is clear that the DOL wants the Rules to mimic the FRCP, both in form andRead more
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