Senate Bill 669: Proposed Longshore Amendments

On March 29, 2011, Senator Johnny Isakson (R-GA) introduced Senate Bill 669, known as “A bill to amend the Longshore and Harbor Workers’ Compensation Act to improve the compensation system, and for other purposes.”  The bill has been referred to the Committee on Health, Education, Labor and Pensions for consideration.  The text of the bill was posted online this morning.  Additional blog entries regarding the content of the bill will be posted soon.

At the outset, it is important to note that Senator Isakson has previously sponsored bills that would amend the Longshore and Harbor Workers’ Compensation Act.  In 2006, Senator Isakson sponsored Senate Bill 3987; in 2007, he sponsored Senate Bill 846; and in 2009, he sponsored Senate Bill 236

Unseaworthiness and Negligence Dismissal Due to Lack of Diligent Discovery

Rule 56(d) of the Federal Rules of Civil Procedure provides that if the non-moving party cannot present facts essential to justify its opposition to the moving party’s Motion for Summary Judgment, the court may defer considering the motion or deny it.

In the instant case, Plaintiff suffered injuries while working for Defendant on Defendant’s vessel.  Plaintiff sought recovery under the Jones Act for maintenance and cure, for Defendant’s negligence, and for the unseaworthiness of the vessel.  Defendant filed a Motion for Partial Summary Judgment on the claims for negligence and unseaworthiness.  The Court noted that Plaintiff did not identify an act or omission of Defendant to support his allegation that Defendant negligently failed to provide a reasonably safe place to work.  Further, Plaintiff did not specify a condition on Defendant’s vessel that would render it unseaworthy.  Plaintiff sought to invoke Rule 56(d) and argued that Defendant’s motion must be denied because the period of discovery had not come to an end.  Because discovery had not ended, he therefore did not have sufficient information to support his claims.

In order to successfully invoke Rule 56(d), the party must explain why he needs additional discovery and how the additional discovery will create a genuine issue of material fact.  Additionally, the party must demonstrate diligence in performing discovery for purposes of obtaining information to support his claim.

Here, Plaintiff was not diligent in undertaking discovery.  He did not propound discovery until five months after the claim was filed, and he also failed to comply with deadlines for his response to Defendant’s discovery requests.  Further, he did not make himself available for deposition until over a year after the claim was filed.  Plaintiff provided no explanation for why discovery was not performed earlier.  In other words, Claimant had ample time and opportunities for discovery.

In light of Plaintiff’s delays in propounding and responding to discovery requests, and his inability to provide a reasonable explanation for these delays, the Court found that Plaintiff did not exhibit the degree of diligence necessary to invoke Rule 56(d).  As such, the Court granted Defendant’s Motion for Partial Summary Judgment and dismissed Plaintiff’s negligence and unseaworthiness claims.

Coleman v. Omega Protein, Inc., No. 10-1977, 2011 WL 976543, slip op. (E.D. La. Mar. 15, 2011).

DBA Coverage and the Japan Disasters

At the 2011 Annual Longshore Conference, District Director David Duhon mentioned the proactive steps that the Office of Workers Compensation Programs (“OWCP”) was taking in response to the earthquake and tsunami that ravaged Japan on March 11, 2011.  In a news release dated March 24, 2011, the OWCP discussed DBA coverage, waivers and radiation exposure.  The news release makes clear that the DBA covers workers employed to perform work on any contracts with any United States government agency, if the contract is performed outside the United States.  Coverage extends to United States citizens and residents, host country nationals, and third country nationals.  

DBA insurance is required unless a waiver has been granted to a particular government agency.  Only the Secretary of Labor can provide a DBA waiver, and it is within the Secretary’s discretion to determine whether application of the DBA will be waived for any contract, work location, or class of employees.  Even if a waiver is granted, however, it does not exempt from DBA coverage citizens of the United States, legal residents of the United States, or employees hired in the United States.  Further, the waiver would not apply to local or foreign nationals working under a United States contract when there is no local workers’ compensation law.  For the Japan disaster, the Secretary has granted the Department of Defense and the Department of State a DBA waiver, but that wavier does not extend to any other United States government agencies.  As a practical matter, it is important to note that waivers are an extremely rare remedy under the law.

Finally, radiation exposure is covered under the DBA because the DBA covers all injuries, occupational diseases, or infections that arise out of or result from employment exposures.  A radiation exposure injury or illness is no different, even if the medical condition is not diagnosed for many years after the employment. 

A copy of the OWCP News Release dated March 24, 2011, can be found here.

Duty to Read a Safety Checklist

The Plaintiff, a soldier in the U.S. Army, was injured in a recreational boating accident after he and several other servicemen rented a pontoon boat at a reservoir maintained by the Army.  The men had been drinking all day and the plaintiff fell overboard when he stood up as the boat decelerated.  The plaintiff sued his friend who was piloting the boat, as well as the manufacturer of the rental boat.  The boat manufacturer filed a third party complaint against the U.S. Army, alleging among other things, negligence in failing to warn the boaters of several dangers associated with the boat.  The Army filed a motion for summary judgment, which was granted by the District Court, as the manufacturer failed to establish a genuine issue of material fact as to whether any negligence by the Army caused or contributed to the injuries.  The manufacturer then appealed to the U.S. Fifth Circuit Court of Appeals.

The Fifth Circuit noted that the negligence claims were brought under federal maritime law and therefore the manufacturer must prove that breach of a duty was the “legal cause” of injury and not merely a “but-for” cause.  The court examined the manufacturer’s claims of negligence for failure to verbally review a safety checklist, which included such prohibitions as drinking alcohol while operating the boat and standing while the engine was running.  In this case, the soldier piloting the boat had rented another boat just two weeks prior to the incident.  Because the rental agent recognized the man, he did not feel the need to re-read the safety checklist and instead required the soldier to initial it.

The Court found that even though the pilot was consuming alcohol and other safety rules were broken, his actions demonstrated that he was at least aware of the provisions on the safety checklist.  The Army’s failure to verbally read the safety checklist therefore may have been a factor contributing to injury, but it did not rise to the level of “legal causation” of the plaintiff’s injury.  The court affirmed the summary judgment and the Army was dismissed as a third party defendant.

Regan v. Stafcraft Marine, LLC, No. 10-30619 (5th Cir. Mar. 15, 2011) (unpublished).

Note: This is not the first time the Fifth Circuit addressed this case.  The court issued a published decision in 2008 where it addressed the Feres, “which bars tort suits against the United States by or on behalf of service members whose injuries arise out of activity incident to their military service.”  Regan v. Starcraft Marine, LLC, 524 F.3d 627, 630 (5th Cir. 2008).