Sharp v. Elkins

• Citation: 616 F. Supp. 1561
• Decision Date: 17 September 1985
• Docket Number: Civ. A. No. 85-1026.
• Parties: Herbert SHARP v. Tom ELKINS, et al.
• Court: U.S. District Court — Western District of Louisiana

616 F. Supp. 1561

Herbert SHARP v. Tom ELKINS, et al.

Civ. A. No. 85-1026.

United States District Court, W.D. Louisiana, Alexandria Division.

September 17, 1985.

William Henry Sanders, Jena, La., for plaintiff.

Joseph L. Lemoine, Jr., Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, La., for Marathon Oil Co.

Ronald J. Fiorenza, Provosty, Sadler & deLaunay, Alexandria, La., for John Wright Smith.

RULING

LITTLE, District Judge.

This matter is now before the Court by way of plaintiff's motion to remand and defendant John Wright Smith's motion for summary judgment. After due consideration the Court finds in favor of defendant Smith and against plaintiff.

BACKGROUND

According to his state court petition, plaintiff alleges that: on 31 August 1984 he was employed by Dual Offshore Drilling Company (Dual) aboard RIG 39 in the Gulf of Mexico when he sustained a disabling hand injury; he reported this injury to Tom Elkins (Elkins), an employee of the platform owner, Marathon Oil Company (Marathon), and requested a helicopter so that he could receive immediate treatment ashore; the request for a helicopter was denied; he then went to John Wright Smith (Smith), an employee of Dual and a co-employee of plaintiff, and made the same request; this request was also denied; fifteen hours later plaintiff received competent treatment; at the time of treatment his hand was swollen, infected and permanently injured.

Plaintiff originally filed this lawsuit in the 28th Judicial District Court, Parish of LaSalle, State of Louisiana, on 15 March 1985. He alleged causes of action against Elkins and Smith under La.C.C. art. 2315¹ and against Marathon under "the strict liability jurisprudence of the State of Louisiana".²

On 12 April 1985, Marathon petitioned for removal claiming that Smith, the only non-diverse party, was fraudulently joined by plaintiff. It is Marathon's position that no cause of action exists against Smith since he was a fellow employee of the plaintiff and as such is entitled to immunity under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA or the Act), 33 U.S.C. §§ 901 et seq.³

Plaintiff filed his motion for remand on 5 August 1985. Smith filed his motion for summary judgment based on LHWCA immunity three days later.

I.

It is well settled that the right to remove a civil action upon the basis of diversity jurisdiction cannot be defeated by the improper joinder of a resident defendant having no real connection with the controversy. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921). It now appears, however, that this doctrine must be applied narrowly in recognition of the express congressional intent to restrict the jurisdiction of federal courts on removal. See, American Fire & Casualty Co. v. Finn, 341 U.S. 6, 10, 71 S.Ct. 534, 538, 95 L.Ed. 702 (1951); Powers v. South Central United Food & Commercial Workers Union, 719 F.2d 760, 762 (5th Cir.1983).

The burden of proving a fraudulent joinder is a heavy one. Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983); B. Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.1981). In order to establish that an in-state defendant has been fraudulently joined, "(t)he removing party must prove that there is absolutely no possibility that the plaintiff will be able to establish a cause of action against the in-state defendant in state court, or that there has been outright fraud in the plaintiff's pleadings of jurisdictional facts". Green, 707 F.2d at 205; B. Inc., 663 F.2d at 549.

Because the residence of each party has not been disputed, the plaintiff's pleadings of jurisdictional facts are obviously not fraudulent. Green, supra. The Court's sole concern, therefore, "is whether there is a possibility that plaintiff has set forth a valid cause of action" against Smith. Id.⁴

Reading plaintiff's allegations in the light most favorable to him, the Court finds he has potentially stated a cause of action against Smith based on intentional tort.⁵ The Court's inquiry thus becomes a more narrow one — Is there any possibility that a court could find an intentional tort exception to the immunity afforded a fellow employee under the LHWCA?

II.

In 1927 Congress passed the LHWCA granting to longshoremen the right to receive workmen's compensation benefits from their employers. The purpose of the Act was to give longshoremen a national workmen's compensation law to fill the void created by decisions of the Supreme Court that longshoremen could not come within state compensation laws⁶ nor be placed therein by Act of Congress.⁷ Parker v. Motor Boat Sales, Inc., 314 U.S. 244, 249-50, 62 S.Ct. 221, 224-25, 86 L.Ed. 184, 191 (1941). Accordingly, the dominant intent of Congress in enacting the LHWCA was to help longshoremen. Bludworth Shipyard, Inc. v. Lira, 700 F.2d 1046, 1051 (5th Cir.1983). Thus, like all remedial legislation, the Act "must be liberally construed in conformance with its purpose, and in a way which avoids harsh and incongruous results". Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 268, 97 S.Ct. 2348, 2359, 53 L.Ed.2d 320, 335 (1977), quoting, Voris v. Eikel, 346 U.S. 328, 333, 74 S.Ct. 88, 91, 98 L.Ed. 5 (1953).

Section 33(i) of the LHWCA, 33 U.S.C. § 933(i) provides in pertinent part:

"(i) Right to compensation as exclusive remedy. The right to compensation or benefits under this Act shall be the exclusive remedy to an employee when he is injured ... by the negligence or wrong of any other person or persons in the same employ: Provided, That this provision shall not affect the liability of any person other than an officer or employee of the employer."⁸

Applying this section, the Court held in Keller v. Dravo Corp., 441 F.2d 1239, 1242 (5th Cir.1971), cert. denied, 404 U.S. 1017, 92 S.Ct. 679, 30 L.Ed.2d 665 (1972), that § 933(i) prohibited any claim against the executive officers of the employer. Earlier, at least one district court had held that fellow workers were immune from suit under § 933(i). Hughes v. Chitty, 283 F.Supp. 734, 737 (E.D.La.1968), aff'd., 415 F.2d 1150 (5th Cir.1969). Later, another district court followed these decisions and granted motions to dismiss an injured employee's claims against his fellow workers. Fitzgerald v. Compania Naviera La Molinera, 394 F.Supp. 402, 407 (E.D.La.1974). Although these cases dealt with negligent injuries inflicted by fellow employees⁹, it would seem logical to apply their holdings to the present case where an intentional tort is alleged. Support for this logic can be found in the inclusion of the word "wrong" in the test of § 933(i). "Wrong" has been defined as "(a) violation of the legal rights of another; an invasion of right to the damage of the parties who suffer it, especially a tort." Black's Law Dictionary, 1788 (rev. 4th ed. 1968). This broad definition clearly encompasses intentional or willful torts.

The above analysis notwithstanding, plaintiff argues that the basic purpose of the LHWCA is to improve the lot of the workers. He submits that if the employer and its employees are protected from the consequences of their willful acts then the Act is "coated with paint" in stating that it is for the workers when it really harbors the employer from actions tantamount to criminal assault, battery and, in the extreme case, murder.

Some authority for plaintiff's position can be found in the Congressional comments under § 933(i):

"The other major provision of the bill relates to immunization of fellow employees against damage suits. The rationale of this change in the law is that when an employee goes to work in a hazardous industry he encounters two risks. First, the risks inherent in the hazardous work, and second, the risk he might negligently hurt someone else and thereby incur a large common-law damage liability. While it is true that this provision limits an employee's rights, it would at the same time expand them by immunizing him against suits where he negligently injures a fellow worker."

1959 U.S.Code Cong. & Ad.News 2135-2136. (Emphasis supplied.) Presumably, Congress could have included language covering intentional torts if it so desired. An argument can be made that the absence of any specific reference to intentional torts means that only torts based on negligence were meant to be covered by § 933(i) immunity.

It is also worthy of note that some courts have recently carved out an intentional tort exception to the immunity afforded an employer under 33 U.S.C. § 905(a).¹⁰ Section 905(a) provides that an employee's compensation remedy is the exclusive remedy against his employer "in place of all other liability". (Emphasis supplied.) Yet, in spite of this broad language, it has been held that where a specific intent exists on the part of the employer to injure an employee, a common-law tort action may be maintained against the employer. See, Houston v. Bechtel Associates Professional Corp., 522 F.Supp. 1094, 1096 (D.D.C. 1981); Austin v. Johns-Manville Sales Corp., 508 F.Supp. 313, 316 (D.Maine 1981).¹¹ Certainly, if an exception for intentional torts can be found under § 905(a) with its seemingly all-inclusive language, then it seems reasonable that the same exception can be found under § 933(i) and its language. However, what is reasonable and what is proper under the law are sometimes two very different things.

Under § 902(2) of the Act the term "injury" is defined as follows:

"The term `injury' means accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment." (Emphasis supplied.)

Clearly this section exhibits a Congressional intent to include within the remedies of the LHWCA torts caused by the...