After completing his shift, Decedent, a Defense Base Act (“DBA”) employee in Iraq, returned to his room, which was provided by the Employer. At the same time, other employees were drinking on the Employer’s premises. During an altercation in Decedent’s room, one of these intoxicated employees shot and killed Decedent. The intoxicated employee pled guilty to involuntary manslaughter and is currently serving a three year prison. Plaintiff, Decedent’s widow, filed a claim for death benefits under the DBA. Her claim was accepted and paid. In addition to the DBA claim, Plaintiff filed a “single negligence claim” against Employer and the intoxicated employee. Following discovery–and problems with delay–the Employer filed a Motion for Summary Judgment, arguing that the Plaintiff’s negligence lawsuit should be dismissed because the DBA was Plaintiff’s exclusive remedy. See 42 U.S.C. § 1651(c) (stating that the compensation scheme under the DBA is “exclusive and in place of allRead more
Nigerian Law, Not U.S. Law, Applied to Vessels Alliding in Nigeria
The Turkish-flagged vessel of Company #1 allided with the Greek-flagged vessel of Company #2 in the Port of Lagos, Nigeria. Company #1 is a Turkish company, and Company #2 is a Greek company. Following the allision, the Greek-flagged vessel required temporary repairs in Nigeria and then extensive repairs in Turkey. Because the repairs caused loss of use damages, Company #2 sued Company #1 in the Eastern District of Louisiana after Company #2 arrested Company #1’s vessel during an unrelated call to a U.S. port. An interlocutory appeal was granted by the Fifth Circuit to consider which country’s law–U.S. or Nigeria–applied to the controversy. Importantly, Nigerian law does not recognize loss of use claims. The Supreme Court previously articulated eight factors a court should consider when determining whether U.S. or foreign law applies: (1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance of domicile of the injured party;Read more
Which Federal Circuit’s Law Applies to a Defense Base Act Claim?
In the United States, there are twelve Courts of Appeals which are known as “circuit courts.” All fifty states, as well as the District of Columbia, are divided into various circuits. These courts are intermediate appellate courts; the last step before the Supreme Court of the United States. Over time, each circuit court has developed its own identity and reputation. The circuit courts can decide issues differently, sometimes because of geographical, political or ideological differences. When a circuit court decides an issue differently from a court in another circuit, a “split” is created. Lower courts in a circuit (i.e. district courts) are bound by their appellate court’s decisions. Those same courts are not bound by another circuit court’s decision. In the Defense Base Act (“DBA”) context, the applicable federal circuit law is determined by statute. Section 1653(b) of the DBA states: “Judicial proceedings provided under sections 18 and 21 of the Longshoremen’s and Harbor Workers’ Compensation ActRead more
Southern District of Texas Addresses Exclusivity of the Defense Base Act
Section 1651(c) of the Defense Base Act (“DBA”) is the provision entitled, “Liability as exclusive.” It states: “The liability of an employer, contractor…under this Act shall be exclusive and in place of all other liability of such employer, contractor, subcontractor, or subordinate contractor to his employees (and their dependents) coming within the purview of this Act, under the workmen’s compensation law of any State, Territory, or other jurisdiction, irrespective of the place where the contract of hire of any such employee may have been made or entered into.” 42 U.S.C. § 1651. Recently, the Southern District of Texas had the opportunity to address the DBA’s exclusivity provision. The decedent worked as a truck driver for Defendant contractor in Iraq. Camp Anaconda was under constant threat of the hijack of convoy trucks, which were then used as explosive devices; therefore no unaccompanied convoys were permitted to attempt to enter the Camp. MembersRead more
Second Circuit Holds that Disputed Psychological DBA Claim Was Timely Filed
After working for nine years as an officer for the Kansas Department of Corrections, Claimant went to work for Employer in Kosovo, where she would apprehend fugitive parolees. She started her new job on April 17, 2004. Her first day of work, however, was marred with tragedy when she and five others were shot by a Jordanian soldier. Three victims died. It was not until April 16, 2006, that Claimant filed a claim for benefits under the Longshore and Harbor Workers Compensation Act (“LHWCA”), as extended by the Defense Base Act, for her underlying psychological injuries. The question presented to the United States Court of Appeals for the Second Circuit was whether this claim was barred by the statute of limitations for failure to timely file a claim. Section 13 of the LHWCA contains a statute of limitations, offering different filing periods based upon whether or not the underlying injuryRead more
Louisiana’s Fourth Circuit Reverses Ruling on Seaman Status
Via a contract with a staffing company, Claimant became employed by a catering company, and was assigned to work as a part of the galley/cooking staff. Claimant alleged that he was injured aboard a vessel while working for the catering company, and he filed Jones Act negligence claims against both parties and their insurers. Subsequently, insurance and indemnification disputes developed between the defendants and their insurers, which were rooted in the issue of whether Claimant was a Jones Act seaman. The trial court, ruling on motions and cross-motions for summary judgment, found that Claimant was a Jones Act seaman, and concluded that the Longshore and Harbor Workers’ Compensation Act was inapplicable; therefore, the catering company was required to defend and indemnify the staffing company. The defendants later settled with Claimant, and a Joint Motion and Order of Dismissal was granted. Appellants now argued that the trial court erred in granting the motions forRead more
New FECA Regulations Go Into Effect Today
Pursuant to the Department of Labor’s website, new regulations for the Federal Employees’ Compensation Act (“FECA”) go into effect today. A copy of the regulations can be found here. These regulations also effect the War Hazards Compensation Act (“WHCA”), including the direct payment regulation, 20 C.F.R. § 61.105. When a case is accepted for direct payment, the Division of Federal Employees’ Compensation furnishes medical care in accordance with FECA. Although no changes were made to the WHCA’s regulations, any changes to FECA’s medical care regulations will have a ripple effect on the WHCA’s direct payment regulation. The good news is that the regulations were amended to bring them up to speed with organizational changes at the Office of Workers’ Compensation programs, and to account for advancing medical billing technologies. (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
ALJ Did Not Have Power to Resolve Defense Base Act Insurance Dispute
Sandi Group, Inc., employed Iraqi nationals who were injured or killed during their employment. Pending before the Office of Administrative Law Judges (“OALJ”) are two claims against Sandi Group, one by an injured claimant, and another on behalf of a deceased claimant. In those proceedings, Sandi Group has taken the position that the claimants were employees working under a subcontract with Dyncorp. Further, Sandi Group alleged that it was entitled to coverage under Dyncorp’s insurance policy because Dyncorp is the employer who is statutorily responsible for providing Defense Base Act coverage for these incidents.” Dyncorp’s insurer, Continental Insurance Company (“Continental”), disagreed, noting that the Dyncorp policy did not cover foreign nationals. Continental then filed a declaratory judgment action in the United States District Court for the District of Columbia to resolve the insurance coverage dispute. Sandi Group asked the court to either dismiss or stay the action, but the court refused.Read more
W.D. Wash: Loss of Consortium Available in Unseaworthiness Claim
In an opinion that is interpretive of the landmark decision in Atlantic Sounding Co., Inc. v. Townsend, 129 S.Ct. 2561 (2009), U.S. District Judge Pechman denied defendant’s 12(b)(6) motion to dismiss by holding that the spouse of an injured seaman may seek damages for loss of consortium under general maritime law. Loss of society damages were deemed to be unavailable to survivors of seamen who brought claims under the Jones Act or under general maritime law under Miles v. Apex Marine Corp., 498 U.S. 19 (1990). The Miles Court based its holding on the U.S. Supreme Court decision in Michigan Central Railroad Co. v. Vreeland, 227 U.S. 59 (1913), which held that loss of society damages were not available under the Federal Employers Liability Act (“FELA”). The Miles Court reasoned that the Jones Act, which incorporated the FELA, required the application of the Vreeland decision as judicial “gloss.” Id. atRead more
Lung Condition First Diagnosed 20 Years Later Was a Second Injury
Decedent was exposed to asbestos dust and fibers in the 1940s and 1950s. In 1977, he was diagnosed with severe chronic obstructive pulmonary disease (COPD). By 1979, Decedent was totally disabled due to extensive arthritis, chronic heart condition, and chronic pulmonary condition. Twenty years later, in 1999, Claimant was first diagnosed with lung cancer. Then, in 2001, Decedent passed away. The question raised in this case was whether or not the employer was entitled to Section 8(f) relief for continuing death benefits payments to Decedent’s widow. In the Fourth Circuit, “to establish entitlement to Section 8(f) relief in a case involving a post-retirement occupational disease, an employer need show only that an employee’s pre-existing permanent partial disability pre-dated the manifestation of the occupational disease that constitutes the ‘second injury,’ and that the employee’s death is not due solely to the subsequent work injury but was contributed to or hastened by the pre-existingRead more
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