Articles by Daniel Sullivan

NINTH CIRCUIT HOLDS DEFENSE BASE ACT’S ZONE OF SPECIAL DANGER APPLICABLE TO LOCAL NATIONALS

Claimant, a citizen of the Marshall Islands, was employed as a civilian defense contractor based in the Kwajalein Atoll, which houses the U.S. Army Space and Missile Defense Command’s Ronald Reagan Ballistic Missile Defense Site.  Claimant was hired as a painter and was given a four-day overnight assignment to paint and repair the Gagan Island pier.  While on Gagan Island, Claimant and co-workers resided in Employer’s trailer, which had limited space and food.  Claimant, as was culturally customary for Marshallese, engaged in reef fishing after hours to catch and eat the fish within the local body of water.  The DBA employer had a policy of prohibiting reef fishing during work hours.  While reef fishing on Gagan Island after hours, Claimant slipped and fell, cutting his right foot.  This injury became infected and ultimately resulted in the amputation of Claimant’s right leg below his knee.

 

Claimant sought benefits pursuant to the Defense Base Act as an extension of the Longshore & Harbor Workers’ Compensation Act.  The Employer denied benefits asserting that the zone of special danger did not apply to local nationals, but only to foreign nationals.  The ALJ and BRB disagreed with Employer and awarded benefits.  On appeal, the Ninth Circuit affirmed the award of benefits.

 

The Ninth Circuit held that the plain language of the DBA does not distinguish between employees sent abroad from their home country and local nationals.  Further, the court held that Congress implicitly endorsed applications of the zone of special danger to local nationals, citing to O’Leary, the United States Supreme Court case that first articulated the zone of special danger in 1951.  Further O’Leary and its progeny did not distinguish between employees sent abroad and local nationals, as Claimants’ domiciles are never broached in those cases.  The Ninth Circuit, however, did note in dicta that if Claimant were injured at home in his living room instead of injured during a four-day overnight work assignment on an uninhabited island with restricted access, then the zone of special danger would not likely apply.

 

Chugach Management Services v. Jetnil & Director, OWCP

Federal District Court Once Again Addresses Discoverability of Surveillance

The Eastern District of Louisiana recently issued another opinion interpreting Chiasson v. Zapata Gulf Marine Corp., the benchmark Fifth Circuit case that guides the discoverability of surveillance as substantive versus impeachment evidence.  Plaintiff alleged that, while employed as a Jones Act seaman, he experienced an accident that resulted in injury to his back and other parts of his body.  In filing against his employer for Jones Act benefits and other defendants for negligence under general maritime law, Plaintiff filed an expedited motion to compel production of surveillance obtained by his Jones Act employer prior to his deposition.  Employer objected to the production of surveillance arguing that surveillance was non-discoverable impeachment evidence at the present stage of litigation.  The District Court agreed that, under Chiasson, Plaintiff was entitled to production of surveillance tapes as substantive evidence, but that Chiasson did not address the timing of disclosure.  The court agreed with Employer that the proper procedure would be to produce the surveillance evidence subsequent to Plaintiff’s deposition in order to preserve the substantive and impeachment value of the surveillance evidence.

 

Krekorian v. FMC Technologies, Inc.

BENEFITS REVIEW BOARD HOLDS STATE WORKERS’ COMPENSATION SETTLEMENT TOLLS STATUTORY BAR

In the 1970s, Claimant worked for a LHWCA-covered employer as a welder. Subsequently, he worked for non-covered employers until he retired voluntarily. During the course of his employment with the Longshore employer, Claimant was exposed to asbestos, and, in 2009, he was diagnosed with lung cancer. In August 2010, Claimant filed a claim for benefits under Connecticut state workers’ compensation law. On December 5, 2012, the state workers’ compensation commissioner approved settlement, and Claimant received payment on approximately the same day. In October 2013, Claimant filed a claim for benefits under the LHWCA. Employer filed a motion for summary decision, asserting that the claim was not filed timely. The administrative law judge denied the motion and awarded benefits to Claimant; Employer appealed to the Benefits Review Board.

 

The Board, in reviewing Section 13(b)(2), noted that Claimant would be barred from filing a LHWCA claim if he failed to file either within two years of becoming aware of the relationship between his illness and his employment, or within one year of the last payment of compensation. As to the latter factor, the Board looked to the definition of “compensation” under Section 2(12). In interpreting “compensation” under that provision, the Board held that a settlement for workers’ compensation benefits under a state statutory scheme was a “payment of compensation” sufficient to toll the statute of limitations under Section 13(b)(2). Thus, Claimant’s October 2013 claim was timely filed within one year of his state-approved settlement in December 2012.

 

Robinson v. Electric Boat Corp.

District Court Refuses to Pierce ExxonMobil Corporate Veil in Denying Jones Act Liability

Plaintiff was the widow of Decedent, a German citizen who worked aboard several foreign vessels from December 1973 to December 1978. During this time period, Plaintiff alleged that her husband was exposed to asbestos in the course of his employment as a chief engineer and merchant seaman. Decedent’s employer during that time period was MOSAT, a Liberian corporation. Plaintiff filed a Jones Act claim on behalf of herself and her deceased spouse against twenty-two corporate defendants. One such corporation, ExxonMobil, filed a Motion for Summary Judgment on the grounds that ExxonMobil was neither Decedent’s employer, nor was it the owner of the subject vessels during the relevant time period. Plaintiff alleged that ExxonMobil’s subsidiaries, Mobil Oil and MOSAT, were essentially the same business entity for liability purposes under the Jones Act.

 

The District Court judge looked to several factors to determine whether a parent company so dominates a subsidiary as to warrant disregarding corporate separateness between the two entities. These factors included: (1) disregard of corporate formalities; (2) inadequate capitalization; (3) intermingling of funds; (4) overlap in ownership, officers, directors, and personnel; (5) common office space, address and telephone numbers of corporate entities; (6) the degree of discretion shown by the allegedly dominated corporation; (7) whether the dealings between the entities are at arm’s length; (8) whether the corporations are treated as independent profit centers; (9) payment or guarantee of the corporation’s debts by the dominating entity; (10) intermingling of property between the entities.

 

In granting ExxonMobil’s Motion for Summary Judgment, the District Court held that Plaintiff was only able to establish, at most, two alter ego factors: some interlocking officers and some common office space. The court placed greater weight on the evidence presented by ExxonMobil that the subsidiary company MOSAT had independent responsibility for the company’s international marine transportation. The court also found it significant the fleets were flown under the flags of various different countries.

 

Unterberg v. ExxonMobil Oil Corporation