Archives for January 2012

Claimant Could Not Re-Open His Closed Case to Correct Section 33(g) Oversight

While Claimant was employed by Brown International (“Brown”) in Afghanistan, he was injured by employees of a third party, BAE Systems Land & Armament (“BAE”).  Claimant sued BAE and BAE then sued Brown for indemnity and negligence.  Eventually, Claimant settled his suit against BAE.  Brown and BAE settled their negligence claim, and BAE’s indemnity claim was dismissed.  An order was then issued dissmissing the action and closing the case “subject to the right of any party within sixty days to…re-open the action upon a showing of good cause.”  Claimant now tries to reopen the case.

Why?  Because of Section 33(g) of the Longshore and Harbor Workers’ Compensation Act.  Pursuant to Section 33(g), an injured worker must obtain his employer’s consent before settling with a tortfeasor for less money than the employer owes the worker in benefits.  Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469 (1992).  If the worker does not obtain the consent, he forfeits future benefits.  Further, an employer may assert a lien against the settlement sums to recoup previously paid benefits.  Here, Claimant did not obtain Brown’s consent before settling with BAE and Brown asserted its lien against Claimant’s settlement proceeds.

The court’s problem with Claimant’s request was that he did not show good cause for re-opening the action in abrogation of the court’s “sixty-day order.”  Claimant was simply trying to “protect his settlement money” but the “sixty day order” specifically declined to retain jurisdiction to enforce the settlement agreement.  Claimant’s new dispute about Section 33(g) belongs in a new action.

Ketchum v. BAE Systems Land & Armaments, No. 8:10-cv-2246-T-23TBM, 2012 WL 206976 (M.D. Fla. Jan. 24, 2012).

Note: Whenever dealing with third party settlements, Section 33(g) should be an utmost concern because, as the Supreme Court said, Section 33(g)’s “forfeiture penalty creates a trap for the unwary.”

Fifth Circuit: Plaintiff’s Argument Misunderstands Nature of Review

In a recent unpublished decision, the United States Fifth Circuit Court of Appeals explained the nature of its review of the denial of a motion for new trial.  The plaintiff in the underlying case was injured while working on a commercial fishing vessel.  He filed a Jones Act negligence and unseaworthiness claim against his employer.  After a three-day jury trial, a unanimous verdict was returned in favor the employer.  The district court subsequently denied the plaintiff’s motion for new trial, finding the verdict was not against the great weight of the evidence.  The plaintiff appealed the district court’s denial of his motion for new trial.

On appeal, the Fifth Circuit noted several pieces of evidence in the record to support the jury’s verdict.  For example, the vessel’s captain testified that the plaintiff had violated company policy by attempting to moor the vessel while it was still moving.  The captain also testified that immediately following the accident, the plaintiff had remarked that it was a result of his own “dumb, stupid mistake.”  Further, the plaintiff had given a statement that the accident was not caused by an unseaworthy condition of the vessel.

The court commented in a footnote that the plaintiff seemed to concede that there was evidence to support the verdict.  However, the plaintiff argued that the evidence was not credible and should be disregarded.  The court took this argument as an indication that the plaintiff misunderstood the nature of its review.  The court explained that it was bound to accept the evidence in support of the verdict as true and that its task was to decide whether there is an “absolute absence” of evidence, not second guess the credibility determinations of the jury.  The Fifth Circuit affirmed the district court’s denial of plaintiff’s motion for new trial.

Register Now for Loyola’s Annual Longshore Conference

Registration is open for the Annual Longshore Conference, which is hosted every year by Loyola University New Orleans College of Law.  The conference is scheduled for March 15-16, 2012, and it will take place at the Sheraton Hotel New Orleans.  Loyola’s Annual Longshore Conference is by far the cream of the crop for longshore conferences.  It boasts a healthy attendance and knowledgeable speakers.  Visit Loyola’s website to register online, or use this form to register by mail, fax or e-mail.  Hope to see you there!

Oral Arguments in Roberts v. Sea-Land Services

Last week, the Supreme Court heard oral argument in Roberts v. Sea-Land Services.  For those who may be interested in the hearing transcript or an audio recording of the hearing, look no further than the Supreme Court’s website.  You can find the audio recording at this link.  The transcript is here.  Finally, there is an interesting SCOTUSblog article by Jack Martone discussing the oral arguments and the Court’s trouble with defining the term “award” for purposes of Section 6 of the Longshore and Harbor Workers Compensation Act.