Archives for October 2010

New York: Concurrent Jurisdiction for State Comp and LHWCA Claims

A dock builder was injured when he fell while stepping from a pier onto a barge.  He applied for benefits under New York’s state workers’ compensation laws, but the employer and carrier made payments to claimant pursuant to the Longshore and Harbor Workers’ Compensation Act.  At a hearing, the employer argued that the New York Workers’ Compensation Board had no jurisdiction over the claim.  The New York Supreme Court, Appellate Division, Third Judicial Department disagreed.  It found that there was “concurrent jurisdiction among state workers’ compensation laws and the LHWCA over claims arising from land-based injuries compensable under the LHWCA.”  The court distinguished those cases falling under other federal schemes, like the Jones Act or Federal Employers’ Liability Act, which provides the “exclusive remedy” for such injuries.

Rodriquez v. Reicon Group, LLC, — N.Y.S.2d —-, 2010 WL 4117396 (App. Div. 2010).


Louisiana Loss of Consortium Claim for OCSLA Injury

On February 27, 2009, while working on an offshore platform, the plaintiff-employee was injured when a crane allegedly fell on him.  The parties did not dispute that the Outer Continental Shelf Lands Act (“OCSLA”) applied to the claim.  Instead, the dispute concerned whether the plaintiff-wife could assert a loss of consortium claim under Louisiana law.  The defendant filed a motion for summary judgment arguing that the plaintiff-wife’s claim must be dismissed.  Ultimately, the Eastern District of Louisiana concluded that “workers injured on fixed man-made structures situated on the Outer Continental Shelf and their families may utilize the state tort law of the adjacent state,” and that Louisiana tort law provides a cause of action for loss of consortium claims.  The defendant’s motion was denied.

Henderson v. McMoran Oil, No. 09-5626, slip op. (E.D. La. Oct. 18, 2010).

Injunction Ordering Payment of Maintenance and Cure Was Improper

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 the District Court granted.

The Third Circuit vacated the District Court’s order, concluding that the claimant failed to meet the burden required to qualify for a mandatory preliminary injunction.  To secure a preliminary injunction, the mover must show: (1) a reasonable probability of eventual success in the litigation, and (2) that it will be irreparably injured pendente lite if relief is not granted to prevent a change in the status quo.  Also, if relevant, the District Court “should take into account, when they are relevant, (3) the possibility of harm to other interested persons from the grant or denial of the injunction, and (4) the public interest.”

Here, the claimant could not satisfy the first prong of the preliminary injunction test because he could not show a reasonable probability of success.  To secure maintenance and cure, a claimant must prove that he is a seaman, and that he sustained an injury in the employ of a vessel.  The claimant’s only factual offerings in Collick were his own declarations, whereas the employer provided production reports, daily time sheets, and a supervisor’s declaration that the claimant’s job duties indicated that he was not a seaman.  The Third Circuit concluded that the District Court erred in finding the claimant could demonstrate “eventual success” because of “the factually intensive nature of the doctrine of maintenance and cure and the abundance of contradictory facts on both sides of the record…”

Collick v. Weeks Marine, Inc., No. 09-4222, slip op. (3d Cir. Oct. 12, 2010).

Fifth Circuit Affirms Dismissal of Claims Against Dredging Companies

On October 14, 2010, the United States Court of Appeals for the Fifth Circuit affirmed the District Court’s dismissal of all claims asserted in a Limitation Suit against multiple dredging companies.  As stated by the Fifth Circuit in a published decision:

“We agree with the district court that the harm suffered by the Claimants was not a foreseeable consequence of the Limitation Petitioners’ allegedly negligent dredging operations.  Whereas in [In re Signal International LLC], the negligent barge-owner anticipated Hurricane Katrina’s approach and failed to secure the barges to withstand the expected storm surge, the Limitation Petitioners in this case had no knowledge of an immediate and pending natural disaster that would affect how they conducted their dredging operations.  Furthermore, it cannot be said that any dredger could have foreseen that performing its dredging activities negligently–as opposed to in conformity with the Corps of Engineers’ specifications–would probably result in the series of events culminating in the catastrophic damages that occurred during Hurricane Katrina.  No reasonable dredger could have anticipated that its negligence would make the difference between the levee systems holding or failing in the event of a hurricane.  The damages alleged here are ‘beyond the pale of general harm which reasonable might have been anticipated by negligent dredgers.'”

In re Katrina Canal, No. 08-30738 (5th Cir. Oct. 14, 2010) (published).

Disclosure: Mouledoux, Bland, Legrand & Brackett represented one of the Limitation Petitioners in this action.