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
Aquaculture Workers are Excluded from Longshore Benefits
Claimant filed a claim for hearing loss against Ingalls Shipbuilding, whom he worked for as a pipefitter in 1944, and Clark Seafood, which employed Claimant for forty years as a commercial processor of fish. After a formal hearing, the administrative law judge determined that Claimant was not entitled to benefits. Claimant did not establish that his hearing loss related to his brief employment as a pipe fitter in 1944, and he was excluded from claiming Longshore benefits against Clark Seafood because he was an aquaculture worker. On appeal, the Benefits Review Board (“BRB”) affirmed. Section 2(3) of the Longshore and Harbor Workers’ Compensation Act specifically states that the term “employee” does not include “aquaculture workers.” See 33 U.S.C. § 902(3) (1984). The Code of Federal Regulations defines “aquaculture workers” to mean “those employed by commercial enterprises involved in the controlled cultivation and harvest of aquatic plants and animals, including the cleaning, processingRead more
Great Law Review Article: Professor LeCesne’s “Crude Decisions” Is Slick
Professor Blaine LeCesne of Loyola University New Orleans College of Law recently published an excellent article in the Michigan State Law Review that is well worth the read. In Crude Decisions: Re-examining Degrees of Negligence in the Context of the BP Oil Spill, 2012 Mich. St. L. Rev. 103 (2012), Professor LeCesne examines multiple potential causes of action arising out of the BP Oil Spill, and how the degree of negligence that led to the manmade disaster could cause the defendants’ liability to skyrocket. Clicking on the title identified above will take you to the SSRN page for the article, where it can be downloaded. The Introduction to the article reads: The Deepwater Horizon oil rig explosion was the worst man-made environmental disaster in United States history. This singular event caused the death of eleven rig workers, damaged, perhaps irreversibly, the coastlines and ecosystems of five Gulf States, and imposed financialRead more
Offshore Sandblaster/Painter was a Jones Act Seaman
Plaintiff worked for a company which performed both onshore and offshore sandblasting and painting. His employer contracted with a third party to undertake the sandblasting and painting of an offshore platform. Plaintiff and his crew worked on this project for two-and-a-half months. During that time, Plaintiff slept and ate on board the M/V Howard McCall, stored equipment on the vessel, and used the vessel as a work platform. Plaintiff was also injured on the vessel: he fell as he was exiting the wheelhouse. After a trial, the jury determined that Plaintiff was a Jones Act seaman, and he awarded maintenance and cure totaling $8,580.00 and $9,754.00 respectively. The first question presented to Louisiana’s Third Circuit was whether Plaintiff was a Jones Act seaman. As for the legal backdrop, the court simply quoted four (4) pages of the Supreme Court’s decision in Chandris, Inc. v. Latsis, 515 U.S. 347, 368-72 (1995). From there,Read more
First Circuit: Neither Suicide Nor Misadventure Fall Within the Scope of the Zone of Special Danger Doctrine
Decedent was employed on a secure military base in Saudi Arabia. One morning, his on-site girlfriend discovered Decedent’s body hanging from a noose. Decedent was wearing pink or red toenail polish, women’s makeup and a pair of blue sweatpants. Decedent’s widow filed a Defense Base Act (“DBA”) claim for death benefits on her behalf and on behalf of the Decedent’s three children. Eventually, both an administrative law judge and the Benefits Review Board (“BRB”) denied the claim. This appeal to the United States Court of Appeals for the First Circuit followed. The First Circuit focused on two issues, jurisdiction and the zone of special danger, and ultimately denied benefits. Proper Appellate Procedure in DBA Claims: In some federal Circuits, litigants may appeal BRB decisions in DBA cases directly to a federal Court of Appeals. In other Circuits, litigants must first appeal BRB decisions to the appropriate federal district court and then,Read more
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