In a slip opinion, the United States Court of Appeals for the Third Circuit vacated a District Court’s injunction ordering the payment of maintenance and cure. In Collick, the claimant alleged that he was injured while working in conjunction with a crane barge. The claimant slipped and fell, sustaining a severe leg fracture requiring multiple surgeries. Physicians opined that the claimant, who was in constant pain, would never again perform such physically demanding work. Initially, the claimant’s employer began paying benefits under the Longshore and Harbor Workers’ Compensation Act. Then, once the claimant filed the instant suit wherein he demanded maintenance and cure, the employer discontinued Longshore benefits. By filing his suit, the claimant raised a question as to whether he was entitled to Longshore benefits as he may not be a longshoreman. The claimant then sought a preliminary injunction forcing the employer to pay him maintenance and cure, which theRead more
Louisiana State Employee May Sue Under Jones Act and General Maritime Law
In a recent case issued by the Court of Appeals of Louisiana, Fourth Circuit, a plaintiff employed by the State of Louisiana, Department of Wildlife and Fisheries, sustained cervical spine injuries while he was a member of the crew of a state owned vessel. At the time of his injury, he was patrolling waters near the Head of Passes in Plaquemines Parish. The plaintiff filed a petition for damages seeking relief under the Jones Act and general maritime law. In response, the State filed a peremptory exception, asserting that the plaintiff’s sole exclusive remedy lied in Louisiana workers’ compensation law. The Fourth Circuit disagreed. The plaintiff relied on two earlier decisions to support his proposition that he could seek relief outside of the scope of the of the Louisiana Workers’ Compensation Act (“LWCA”). In Higgins v. State of Louisiana, 627 So.2d 217 (La. App. 4 Cir. 1993), the court determinedRead more
FL Third District: Evidentiary Finding is a Prerequisite to a Punitive Damages Claim
In 2004, an intoxicated employee for the Defendant cruise line knocked on multiple passenger doors, apparently attempting to find a place to sleep. The Plaintiff, Jane Doe, was one of the accosted passengers, and she filed a lawsuit asserting negligence, assualt, battery, intentional infliction of emotional distress, and negligent infliction of emotional distress. One month before trial, Plaintiff requested leave to amend her complaint to include punitive damages. Without making a determination as to whether a reasonable evidentiary basis existed for the punitive damages claim, the trial court allowed the amendment. The Defendant appealed the decision and the District Court of Appeal of Florida, Third District, reversed. In Florida, a state statute provides that “[i]n any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis of suchRead more
Eleventh Circuit: Scope of the Public Vessels Act versus the Suits in Admiralty Act
The Eleventh Circuit recently addressed the interplay between the Public Vessels Act (“PVA”) and the Suits in Admiralty Act (“SAA”) as it related to negligence claims against the Coast Guard. In Uralde, the Coast Guard dispatched a boat to intercept a private vessel trying to illegally enter the United States with several Cuban citizens. A chase ensued, and it did not end until a Coast Guard officer fired two rounds into the private vessel’s engine. The sudden stop caused one of the passengers to strike her head, an injury which eventually led to her death. The plaintiff-widower launched a negligence suit against the Coast Guard, and his negligence theories were “based in the Coast Guard’s decisions regarding whether and how to provide proper medical care and timely access to medical treatment of a passenger on a private vessel interdicted at sea.” Analyzing both Acts together, the Eleventh Circuit determined thatRead more
What is Commutation and How is it Calculated?
Commutation is a procedural remedy whereby an insurance carrier may reduce specific Longshore and Harbor Workers Compensation Act (“LHWCA”) or Defense Base Act (“DBA”) benefits owed to a foreign national by one-half. Although death benefits owed a foreign national under the LHWCA may be commuted (see 33 U.S.C. § 909(g) and 20 C.F.R. § 702.142), commutations typically arise in situations involving Defense Base Act claimants who are “nonnationals of the United States not residents of the United States or Canada…” See 42 U.S.C. § 1652(b). For LHWCA purposes, commutations only apply to Section 9 death benefits, but for the DBA, commutations are available for both death benefits and Section 8(c)(21) indemnity benefits. Calculating a commutation value of a death benefits claim requires knowledge of the current National Average Weekly Wage (“NAWW”) percent increase, the current interest rate for a one-year constant maturity, the claimant’s life expectancy, and the claimant’s currentRead more
Under LHWCA, State Law Controls Allocation of Fault to Non-Maritime Third Party
In Jowers v. Lincoln Elec. Co., — F.3d —-, 2010 WL 3341651 (5th Cir. 2010), Plaintiff, a supervisor and foreman for Ingalls, a shipbuilding contractor, instituted in the United States District Court for the Southern District of Mississippi a products liability action under Mississippi law. Plaintiff alleged that the welding consumables he used during his career emited fumes containing manganese, which could cause serious neurological diseases. Prior to the lawsuit, two neurologists diagnosed Plaintiff with manganese-induced Parkinsonism. At the trial, the court awarded Jowers $1,200,000 in compensatory damages and $1,700,000 in punitive damages, but the compensatory portion of the award was reduced by 40% to take into account the Plaintiff’s own fault. Although the Fifth Circuit addressed multiple issues on appeal, such as the government contractor defense and evidentiary rules, the court’s statements regarding allocationof fault and the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) are most important for our purposes. The LHWCA provides workersRead more
Meaning of the Word “Dependency” For Parental Dependency Claims Under the LHWCA
In a published decision, Urso v. MVM, Inc., the Benefits Review Board tackled the meaning of the word “dependency” as used in the Longshore and Harbor Workers Compensation Act and the Internal Revenue Code. In Urso, the decedent’s parents claimed death benefits under Section 9(d) of the LHWCA. If there is no surviving spouse or child, then Section 9(d) provides “support of grandchildren or brothers and sisters, if dependent upon the deceased at the time of the injury, and any other persons who satisfy the definition of the term ‘dependent’ in section 152 of title 26 of the United States Code, but are not otherwise eligible under this section, 20 per centum of such wages for the support of each such person during such dependency and for the support of each parent, or grandparent, of the deceased if dependent upon him at the time of the injury, 25 per centum ofRead more
Negligent Allision of Moving Vessel With Stationary Vessel
Plaintiff, a yacht broker and expert fishing vessel operator, planned a weekend fishing trip with friends aboard the 29-foot M/V Tuner. A tropical storm delayed the fishing trip, and the M/V Tuner remained docked in a marina. Thereafter, Plaintiff noticed a 43-foot vessel, the M/V Special T, was heading directly towards the stationary M/V Tuner. The M/V Special T’s operator, Defendant, could not control the boat due to loss of power, and his attempts to restart the engines failed. He sent out an alarm to notify Plaintiff, who told Defendant not to start the M/V Special T’s engines. Defendant nonetheless continued his efforts. Although Defendant successfully restarted the M/V Special T as it came within feet of the M/V Tuner, a water surge from the newly-started engines caused Plaintiff to lose his balance and fall. Ultimately, he was diagnosed with a fractured calcaneous bone in his right heel and awarded, among otherRead more
The Scope of Repair Included the Defective Hatch Cover
Employees (Plaintiff and Intervenor) of Loredo Construction, Inc. (“LCI”), one of the named defendant in Plaintiff’s and Intervenor’s claims under Section 905(b) of the Longshore and Harbor Workers Compensation Act, filed suit against LCI and The Grand, Ltd., because of an accident that occurred while The Grand’s vessel was placed in drydock for repairs. The Grand owned the subject vessel, a derrick barge, and turned it over to LCI for repairs. Plaintiff and Intervenor were assigned the responsibility of repairing and refurbshing the vessel, including the pressure testing of tank P1. Testing P1 required Plaintiff and Intervenor to seal the tank with a hatch cover. While doing so, “the hatch came off while still under pressure, causing the accident that is the subject of this suit.” LCI and The Grand filed motions for summary judgment. LCI contended that it did not own or operate the vessel, and it did not breach any duty a vesselRead more
Sufficient Explanation of MMI Onset Necessary
In a short unpublished decision, the United States Court of Appeals, Sixth Circuit, vacated the decision of the Benefits Review Board and remanded the case to the Administrative Law Judge. As quoted by the Sixth Circuit, the Administrative Procedure Act requires the factfinder to render a decision that includes a discussion of “findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record.” 5 U.S.C. § 557(c)(3)(A). Here, the ALJ determined without sufficient explanation that the claimant reached MMI upon his failed attempt to return to work. The Sixth Circuit casted doubt on this unexplained finding: “[w]hile Williams’ inability to perform his prior job duties may indicate that he was permanently disabled as of May 31, 2005, it does not necessarily indicate that this was the date he reached MMI.” Marathon Ashland Petroleum v. Williams, 2010 WL 2711316 (6thRead more
