This morning the Supreme Court decided Roberts v. Sea-Land Services, Inc. In this employer-friendly decision, the Court held that “an employee is ‘newly awarded compensation’ when he first becomes disabled and thereby becomes statutorily entitled to benefits, no matter whether, or when, a compensation order issues on his behalf.” The Court’s syllabus is reprinted below. The Longshore and Harbor Workers’ Compensation Act (LHWCA) creates a comprehensive scheme to pay compensation for an eligible employee’s disability or death resulting from injury occurring upon the navigable waters of the United States. Benefits for most types of disabilities are capped at twice the national average weekly wage for the fiscal year in which an injured employee is “newly awarded compensation.” 33 U. S. C. §906(c). The LHWCA requires employers to pay benefits voluntarily, without formal administrative proceedings. Typically, employers pay benefits without contesting liability, so no compensation orders are issued. However, if an employer controvertsRead more
Roberts v. Sea-Land Services Write-Up at LexisNexis’ Workers’ Compensation Community
Recently, I had the privilege of preparing an article about the oral arguments before the Supreme Court in the Roberts v. Sea-Land Services case. The article was posted on LexisNexis’ Workers Compensation Community page, and it can be found at this link. There is a healthy Longshore community over at LexisNexis, and for good reason. Here are some of the Longshore-related posts I enjoyed: LHWCA: Responsible Employer Determination in Cases Involving Multiple Traumatic Injuries: Seeking Analytical Clarity by Yelena Zaslavskaya. For those who may not have been there, Ms. Zaslavskaya’s article about attorney’s fee rates, Longshore Act: Reasonable Hourly Rate Determination — Overview of Recent Decisions, received a lot of well-deserved kudos at the 2011 Annual Longshore Conference. I expect her Responsible Employer article will receive the same. As Iraq War Winds Down, Some DBA Issues Are Resolved While Others Remain in Dispute by Mark A. Reinhalter. This article presents a helpful overview of theRead more
Prior Bad Acts Relevant to Damages and Future-Earnings Calculation
Plaintiff suffered serious on-the-job injuries when he fell from a cylindrical cell tower. Thereafter, Plaintiff and his wife sued Plaintiff’s employer, as well as other companies involved in Plaintiff’ work on the day he fell. After a trial, the jury returned a verdict that Plaintiff had not established the facts necessary to recover under the Jones Act, despite incurring nearly eleven million dollars in actual damages. On appeal to the United States Court of Appeals, Sixth Circuit, Plaintiff complained about the admission of an expert report which contained unflattering facts about Plaintiff’s past, including “extensive prior alcohol, methamphetamine, cocaine, and marijuana use; a failure to pay child support and termination of his parental rights; numerous arrests for alcohol intoxication, convictions for trafficking methamphetamine, driving while impaired, possession of marijuana, and failure to appear in court; and physical abuse leading to hospitalization.” The Sixth Circuit was satisfied that the expert’s opinionRead more
Supreme Court Grants Another “Vessel” Case. Casino Boats Beware.
On February 21, 2012, the Supreme Court of the United States granted certiorari for Lozman v. City of Riviera Beach, Florida. The issue is “[w]hether a floating structure that is indefinitely moored, receives power and other utilities from shore, and is not intended to be used in maritime transportation or commerce constitutes a “vessel” under 1 U.S.C. Sec. 3, thus triggering federal maritime jurisdiction.” SCOTUSBlog’s case page provides a wealth of case information, including the Eleventh Circuit’s opinion from which certiorari was granted. In the Eleventh Circuit, the City of Riviera Beach (“City”) filed an in rem proceeding against Defendant Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven Feet in Length (“Defendant”) for trespass and to foreclose on the City’s maritime lien for unpaid dockage. Defendant argued that his was a “floating residential structure” and not a “vessel,” but the Eleventh Circuit disagreed. Pursuant to 1 U.S.C. Sec. 3, a “vessel” includes “every description ofRead more
Louisiana Third Circuit Follows Suit, Holds Casino Boat Not a Vessel
An intoxicated patron fell down the stairs of the M/V CROWN CASINO, a riverboat casino owned by St. Charles Gaming Company, Inc. the plaintiff filed suit seeking damages under general maritime law which, he argued, pre-empted a Louisiana statute limiting liability for loss connected with the service of alcoholic beverages. La. Rev. Stat. Ann. § 9:2800.1 (2012). The parties then filed cross motions as to whether the casino boat had vessel status. The Court of Appeal of Louisiana, Third Circuit, determined that the M/V CROWN CASINO was not a vessel for maritime purposes. A “vessel” is “every description of watercraft or artificial contrivance used, or capable of being used, as a means of transportation on water.” 1 U.S.C. § 3. The Supreme Court, in Stewart v. Dutra Constr. Co., 125 S.Ct. 1118, 1127 (2005), determined that “a watercraft is not ‘capable of being used’ for maritime transport in any meaningful senseRead more
Section 944 Does Not Preempt New Hampshire’s Insurer Liquidation Act
The United States District Court for the District of New Hampshire recently addressed an interesting Special Fund question: whether the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) preempts New Hampshire’s state law establishing the priority in which payments will be made from the assets of a liquidated insurer. The court determined that the state law was not preempted by the LHWCA. The Home Insurance Company was declared insolvent in 2003 by the New Hampshire Superior Court. Liquidation was ordered and the United States Department of Labor filed a proof of claim seeking $2,600,000.00 in Special Fund assessments. The DOL was assigned as a Class III priority, and it was believed that Class III claims would not be paid because of insufficient funds. The DOL then filed the instant suit seeking its preemption declaration. The goal was to move up to a Class I or Class II level in order to haveRead more
Claimant Could Not Re-Open His Closed Case to Correct Section 33(g) Oversight
While Claimant was employed by Brown International (“Brown”) in Afghanistan, he was injured by employees of a third party, BAE Systems Land & Armament (“BAE”). Claimant sued BAE and BAE then sued Brown for indemnity and negligence. Eventually, Claimant settled his suit against BAE. Brown and BAE settled their negligence claim, and BAE’s indemnity claim was dismissed. An order was then issued dismissing the action and closing the case “subject to the right of any party within sixty days to…re-open the action upon a showing of good cause.” Claimant now tries to reopen the case. Why? Because of Section 33(g) of the Longshore and Harbor Workers’ Compensation Act. Pursuant to Section 33(g), an injured worker must obtain his employer’s consent before settling with a tortfeasor for less money than the employer owes the worker in benefits. Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469 (1992). If the worker doesRead more
Fifth Circuit Holds Defense Base Act is an Exclusive Remedy
The United States Court of Appeals, Fifth Circuit, issued an important opinion addressing the exclusive nature of the Defense Base Act (“DBA”) and whether an employer can be held liable under an intentional tort theory for injuries sustained by contractors. The plaintiffs in Fisher v. Halliburton filed suit against the employer that employed their deceased family members as truck drivers in Iraq. On April 9, 2004, two convoys were savagely attacked by insurgents with improvised explosive devices, rocket-propelled grenades and machine gun fire. Seven drivers were killed and ten were injured. The plaintiffs filed suit alleging negligence and fraud, and after an earlier decision by the Fifth Circuit, the plaintiffs refined their complaint to also include civil conspiracy, intentional infliction of emotional distress and intent to injure/assault. On the present appeal, the Fifth Circuit determined that it needed to resolve three issues: (1) whether the injuries were injuries “caused by theRead more
SCOTUS Decides Pacific Operators Offshore, LLP v. Valladolid
Today, the Supreme Court of the United States issued its opinion in Pacific Operators Offshore, LLP v. Valladolid. The syllabus of the opinion, which was written by Justice Thomas, states: Petitioner Pacific Operators Offshore, LLP (Pacific), operates two drilling platforms on the Outer Continental Shelf (OCS) off the California coast and an onshore oil and gas processing facility. Employee Juan Valladolid spent 98 percent of his time working on an offshore platform, but he was killed in an accident while working at the onshore facility. His widow, a respondent here, sought benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U. S. C. §901 et seq., pursuant to the Outer Continental Shelf Lands Act (OCSLA), which extends LHWCA coverage to injuries “occurring as the result of operations conducted on the [OCS]” for the purpose of extracting natural resources from the shelf, 43 U. S. C. §1333(b). The Administrative Law Judge dismissedRead more
New Final Rule for LHWCA’s Exclusion of Recreational Vessel Workers
The United States Department of Labor issued a final rule implementing the Longshore and Harbor Workers’ Act’s exclusion for recreational vessel workers. The final rule, which becomes effective on January 30, 2012, excludes from the definition of “employee” those “[i]ndividuals employed to build any recreational vehicle under sixty-five feet in length, or individuals employed to repair any recreational vehicle, or to dismantle any part of a recreational vehicle in connection with the repair of such vessel….” Further, the final rule defines the term “recreational vessel” by incorporating the United States Coast Guard’s standards for defining a recreational vehicle. The definition focuses on the purpose of the vessel (i.e. is it used for pleasure or recreation?), but even a public vessel can be deemed recreational “at the time of repair, dismantling for repair, or dismantling, provided that such vessel shares elements of design and construction with traditional recreational vessels and isRead more
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