No Cause of Action Against Coworker’s Lending Employer

The U.S. District Court for the Eastern District of Louisiana recently issued an interesting decision applying the Longshore and Harbor Workers’ Compensation Act’s borrowed servant doctrine.  The plaintiff was injured on a tension leg platform on the outer continental shelf when another worker dropped a piece of equipment on his back.  Plaintiff sued his employer (BP) as well as the other worker’s employer (Danos and Curole).

The parties ultimately agreed that the LHWCA applied by virtue of the Outer Continental Shelf Lands Act and BP was eventually dismissed as plaintiff’s employer.  Danos and Curole filed a motion for summary judgment, arguing plaintiff had no cause of action because its employee was acting as a borrowed servant of BP at the time of the incident.  If plaintiff’s coworker was acting as a borrowed employee of his own employer, BP, the LHWCA prevented him from suing his coworker for negligence and he therefore had no cause of action for vicarious liability against Danos and Curole.

The Court applied the Fifth Circuit’s nine factor test for the borrowed servant doctrine.  After finding that the vast majority of the evidence weighed in favor of plaintiff’s coworker being a borrowed servant of BP, the Court held that plaintiff had no cause of action against Danos and Curole for vicarious liability and dismissed all claims.

Crawford v. BP Corporation North America, Inc.

Mineral Lessee Does Not Have a Duty to Police the Waterways it Leases

In June 2014, Danny Luke was checking his crab traps when his skiff struck a submerged piling.  Mr. Luke’s vessel was damaged by the collision, and he sustained injuries to his head, neck, back, and other areas.  Mr. Luke alleges that the negligence of Hilcorp Energy Company and Roustabouts, Inc. caused the accident.  It is well established that a private company assumes liability for damages resulting from a collision of a boat with an obstruction in navigable waters when it has ownership, custody or is responsible for placement of the obstruction in the navigable waters.  Here, Hilcorp had held the mineral lease where the accident occurred since July 2010, and Roustabouts was contracted to provide oilfield construction services to Hilcorp.  Luke sued Hilcorp and Roustabouts in the U.S. District Court for the Eastern District of Louisiana.

The defendants moved for summary judgment contending that they did not own, control, maintain, place, or have any connection to the piling that struck Mr. Luke’s vessel.  In an attempt to establish a genuine dispute of material fact, Mr. Luke focused on the facts that Hilcorp and Roustabouts worked in the general area, Roustabouts removed the piling after the accident, and Hilcorp failed to inspect the waterway it leased.  The court emphasized that the mere argued existence of a factual dispute does not defeat an otherwise properly supported motion for summary judgment.  The court granted the motion, ruling that Mr. Luke failed to present any evidence that Hilcorp or Roustabouts owned or were responsible for the piling, and as such, owed no duty to Mr. Luke.  The court reasoned that a mineral lessee does not have a duty to those using navigable waterways to police the waters covered by its lease or to take steps to remove obstructions that it does not own, has not placed there, or does not maintain under its control.

Luke v. Hilcorp Energy Company, et al.

D.C. Circuit Rules No Intentional Tort Exception Under Defense Base Act

On June 2, 2015, the United States Court of Appeals for the District of Columbia Circuit ruled that there is no intentional tort exception under the Defense Base Act, affirming the dismissal of a purported class action suit on behalf of a group of 32 plaintiffs who alleged a variety of intentional tort claims in connection with the administration of their Defense Base Act claims. They sought to be declared class representatives for an estimated 10,000 similarly situated DBA workers.

The court noted: Members of the plaintiff class suffered severe injuries. They lost limbs in massive explosions, suffered traumatic brain injuries from “concussive blasts, mortars, rockets, and bombs,” and developed post-traumatic stress disorder after witnessing “gruesome scenes of carnage.”

The plaintiffs alleged their DBA employers and carriers “failed or refused to provide medical benefits owed,” “cut off medical benefits,” delayed providing benefits, “made false statements and misrepresentations” regarding payment of DBA benefits “while actually reducing, denying or ignoring [their] medical needs,” failed to comply with orders to pay benefits, threatened or discouraged workers from making claims, and terminated employment after the claimants were disabled by their allegedly covered injuries. They made class-wide claims for discrimination and retaliatory discharge under the LHWCA, RICO violations, bad faith and tortious breach of the covenant of good faith, “unconscionable, fraudulent, and deceptive trade practices,” civil conspiracy, violations of the ADA, and wrongful death.

Citing to the exclusivity provisions of the DBA, LHWCA, and District of Columbia Workers’ Compensation Act, all of which follow a similar construct, the court found that the intentional torts alleged by the plaintiffs fell squarely within the quid pro quo of those Acts and prohibited the suit to proceed. The court allowed the tangential tort claims, including an alleged assault and the ADA claims to be remanded for further proceedings.

This decision is important both for DBA and LHWCA practitioners, as it is the clearest pronouncement to date explaining the scope of the exclusivity provisions of these statutes and determining no intentional tort exception exists under the DBA.

Brink v. Continental Insurance Co., No. 13-7165 (June 2, 2015).

OWCP Issues Updated Forms LS-207 and LS-208

OWCP has revised its mandatory Forms LS-207, Notice of Controversion, and LS-208, Notice of Final Payment or Suspension of Compensation Payments. The changes are described in Industry Notice 151.

• Changes to the Form LS-207 include reordering the list of parties and addresses, adding a back page with instructions requiring that a copy of the form be mailed to the injured employee (and legal representative, if any), and eliminating the requirement that the form be submitted in triplicate.

• Changes to the Form LS-208 include reorganizing the report of payments made on account of death and other payments, expanding the report of payments made on scheduled permanent partial disability awards, and adding a back page to provide additional instructions. As with the Form LS-207, the signing of the Form LS-208 serves as confirmation that a copy was mailed to the injured employee and his or her attorney if represented.

Both forms also include information for electronic submission through SEAPortal for easier and more efficient transmission. The new forms may be accessed at the Division of Longshore and Harbor Workers’ Compensation (DLHWC) website at: http://www.dol.gov/owcp/dlhwc/lsforms.htm and further details regarding these changes can be found at http://www.dol.gov/owcp/dlhwc/lsindustrynotices/industrynotice151.htm.