Louviere v. Shell Oil Co.

Decision Date06 March 1975
Docket NumberNo. 73--3686,73--3686
PartiesRaymond D. LOUVIERE et al., Plaintiffs-Appellants, v. SHELL OIL COMPANY et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

W. D. Atkins, Jr., Lafayette, La., for plaintiffs-appellants.

John O. Charrier, Jr., New Orleans, La., for Shell Oil Co.

Donald A. Hoffman, Thomas W. Thorne, Jr., New Orleans, La., for Pneumatic Service & Equip. Co. and Ins. Co. of No. America.

Charles D. Marshall, Jr., New Orleans, La., for American Marine Corp.

Felicien P. Lozes, New Orleans, La., for Avondale Shipyard.

W. K. Christovich, New Orleans, La., for Pacific Movible et al.

Francis G. Weller, New Orleans, La., for Weigand Co. et al.

W. Eugene Davis, New Iberia, La., for Texsteam Corp.

Alfred S. Landry, New Iberia, La., for Pneumatic Service & Equip.

James E. Diaz, Lafayette, La., for Superior Oil Co.

Joel L. Borrello, New Orleans, La., for Argonaut Ins. Co.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WISDOM and BELL, Circuit Judges, and BREWSTER, District Judge.

WISDOM, Circuit Judge.

Raymond Louviere was injured when a hot water heater exploded in the living quarters of a fixed platform in the Gulf of Mexico. Almost three years after the explosion, he filed suit for damages. The district court dismissed his suit, holding that his claim had prescribed. Louviere appeals, alleging that a suit filed by his employer's workmen's compensation carrier against the same defendants interrupted the running of prescription. We reverse and remand.

Louviere was employed by Movible Offshore, Inc. as a cook in the living quarters of a fixed platform located on the outer Continental Shelf off the Louisiana coast. On May 6, 1970, a hot water heater exploded injuring some workers and killing others. Louviere suffered broken ribs, a broken collar bone, an injured back, and burns. After surgery on his back, he returned to work from time to time but on each occasion found himself unable to continue working. A psychiatrist concluded that the explosion had caused multiple trauma, and that Louviere later suffered an anxiety neurosis and depression. He has, allegedly, had severe pain from his injuries and has had episodic crying spells. He now asserts that he is totally and permanently disabled.

After the accident, Movible Offshore's compensation carrier, Argonaut Insurance Company, paid Louviere benefits under the terms of the Longshoremen's and Harbor Workers' Compensation Act. 33 U.S.C. §§ 901 et seq. Because Movible Offshore did not contest Louviere's right to compensation, benefits were paid without entry of an award by the deputy commissioner. Argonaut, as Movible's subrogee, 1 then filed a suit in federal district court on May 5, 1971, seeking reimbursement for workmen's compensation benefits paid as a result of the explosion. The complaint named as defendants, the owner of the platform, the manufacturers and sellers of the heater and some of its components, and the builder of the living quarters.

The complaint alleged that the negligence of the defendants was the proximate cause of the explosion; that certain employees were injured or killed in the explosion; that, as a result of the explosion, Argonaut had become obligated to pay workmen's compensation benefits to those employees under the Longshoremen's and Harbor Workers' Compensation Act; and that, under the provisions of the Act, it was entitled to recover against the defendants all the benefits it had paid or might become obligated to pay.

On February 27, 1973, while Argonaut's suit was pending but before trial, 2 Louviere filed suit, seeking to recover damages from the same defendants, alleging their negligence as the cause of his injuries. 3 The defendants filed a plea of prescription, alleging that the one year prescriptive period allowed under Louisiana law for suit on a tort claim had passed and that Louviere's claim was barred. They argue that Argonaut's suit was not effective to interrupt prescription because it was barred by provisions of the Longshoremen's and Harbor Workers' Compensation Act. 33 U.S.C. § 933.

The Louisiana one year period of limitations governing personal injury actions, Art. 3536, La.Civ.Code Ann., is applicable to this action. Chevron Oil Co. v. Huson, 1971, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296. 4 Also governing, in the absence of applicable federal law, is LSA--R.S. 9:5801, providing for interruption of prescription by the filing of a suit. 5

The appellees seek to avoid application of this rule in favor of Louviere, by invoking the rule that a suit that 'does not state any right or cause of action whatsoever' will not interrupt prescription. Callendar v. Marks, Sup.Ct.1936, 185 La. 948, 952, 171 So. 86, 87. They contend that Argonaut's suit falls within this rule, because Section 33 of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 933 contemplates that an employer may sue a third party only where he has paid compensation benefits under an award entered by the deputy commissioner. They would thus have us impute to the assignment provision of Section 33 an exclusory effect, preempting any nonstatutory remedies otherwise available to an employer to recoup from a third party tort-feasor compensation benefits paid under the Act. Louviere argues that, although Section 33 makes the right to sue as a statutory assignee contingent on payment of compensation under an award, it was not designed to supplant parallel, nonstatutory remedies available to the employer and did not bar Argonaut's suit, as the employer's subrogee.

The threshold questions we must consider are whether Section 33 of the Act preempts whatever nonstatutory rights of action an employer might have for compensation payments to an employee, and if not, whether the employer does, in the absence of a statutory bar, have such a right of action in the circumstances this case presents, and whether suit to enforce such a right is effective to interrupt prescription of the employee's claim for damages.

I.

The contention that Section 33 of the Act should be construed as providing the sole remedy of an employer against third persons, preempting other nonstatutory remedies, was addressed and rejected in Federal Marine Terminals, Inc. v. Burnside Shipping Co., 1969, 394 U.S. 404, 89 S.Ct. 1144, 22 L.Ed.2d 371. There a longshoreman had been killed by a fall into an unguarded hatch. His widow, after accepting compensation under an award, filed a wrongful death action against the shipowner, Burnside, within six months of the award. Burnside, in turn, filed a separate action in the same federal court seeking indemnification from Marine Terminals, the longshoreman's employer. Marine Terminals, then counterclaimed against Burnside for 'all sums which have been paid or will be paid' as compensation benefits, alleging that Burnside, as owner and operator of the vessel, had breached its duty to the stevedore to provide a safe place of work, causing the death which triggered the stevedore's statutory obligation to pay compensation. The district court dismissed the counterclaim and the court of appeals affirmed, both reasoning that the statutory remedy was exclusive and that the employer could not sue except as a statutory assignee.

The Supreme Court reversed. First, it held that Section 33 of the Act is not the exclusive source of an employer's remedies to recoup compensation payments from negligent third parties. The keystone of its analysis was that Section 33 'gave the employer, in return for his absolute liability to the (employee), part of the latter's rights against others' and 'the legislative grant of a new right does not ordinarily cut off or preclude other nonstatutory rights in the absence of clear language to that effect.' 394 U.S. at 412, 89 S.Ct. at 1149. The Court, looking to the language of the statute and its legislative history, found nothing to suggest a purpose to limit the employer's remedy against third persons to assignment to the rights of the compensated employee. The Court particularly observed that whereas Congress had explicitly made the employer's absolute liability for compensation exclusive of any tort liability, it attached no such exclusivity to the employer's right to sue third parties as the assignee to the rights of the employee.

Liberty Mutual Insurance Co. v. United States, 2 Cir. 1961, 290 F.2d 257, and Joyner v. F. & B. Enterprises, 1971, 145 U.S.App.D.C. 262, 448 F.2d 1185, on which the appellees rely, are, we conclude, inconsistent with Burnside. Liberty Mutual involved the same longshoreman-stevedore-shipowner triangle that was present in Burnside. The stevedore's compensation carrier paid benefits to the employee under an award. When the employee failed to sue, the employer filed suit against a third party, four months after the award, but only eleven days before his suit would have been barred by the governing statute of limitations. Had he waited the statutory period of six months, to file as a statutory assignee, his claim would have been barred. Chief Judge Lumbard, in dissent, argued that although the employer was not entitled to sue as a statutory assignee until six months after the award, he should be permitted to seek recoupment as an equitable subrogee. His line of reasoning, similar to that of the Court in Burnside, was that the statutory assignment of rights granted by Section 33 conferred an additional remedy on the employer but did not preempt pre-existing nonstatutory remedies. Nevertheless, the majority upheld the dismissal of the employer's suit, finding that, absent statutory assignment, neither the employer nor its subrogated compensation carrier was entitled to initiate an action against an alleged third party tortfeasor.

The Court of Appeals for the District of Columbia reached the same conclusion in Joyner...

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