Travelers Ins. Co. v. Marshall, 78-2387

• Decision Date: 20 January 1981
• Docket Number: No. 78-2387,78-2387
• Citation: 634 F.2d 843
• Parties: The TRAVELERS INSURANCE CO., Petitioner, v. Mrs. Mary MARSHALL, Director, Office of Workers' Compensation Programs, U. S. Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 843

634 F.2d 843

The TRAVELERS INSURANCE CO., Petitioner, v. Mrs. Mary MARSHALL, Director, Office of Workers' Compensation Programs, U. S. Department of Labor Respondents.

No. 78-2387.

United States Court of Appeals Fifth Circuit.

Jan. 20, 1981.

Strong, Pipkin, Nelson, Parker & Bissell, William B. Coffey, Jr., Kerwin B. Stone, Beaumont, Tex., for petitioner.

Carin A. Clauss, Sol. of Labor, Linda L. Carroll, Laurie M. Streeter, Joshua T. Gillelan, II, U. S. Dept. Of Labor, Washington, D. C., for respondents.

Petition for Review of an Order of the Benefits Review Board.

Before TJOFLAT, RUBIN and TATE, Circuit Judges.

TJOFLAT, Circuit Judge:

Travelers Insurance Company has filed this petition, pursuant to section 21 of the Longshoremen's and Harbor Workers' Compensation Act (the Act), 33 U.S.C. § 921 (1976), for review of a decision of the United States Department of Labor Benefits Review Board holding petitioner liable for certain death benefits authorized by section 9 of the Act. 33 U.S.C. § 909 (1976). We affirm the decision of the Board.

I

Neither party contests the facts underlying the Review Board's disputed order. On February 19, 1959, Van Marshall suffered a job related injury while employed by Looney's Sheet Metal Shop. Because of this injury, he received a compensation award for temporary total disability under the Longshoremen's and Harbor Workers' Compensation Act. During 1968 Van Marshall was found permanently totally disabled as a result of his 1959 injury; his award was appropriately modified. This permanent total disability continued until Van Marshall died on February 18, 1975, of causes unrelated to his 1959 injury.

At the date of Marshall's initial injury, Travelers Insurance Company provided Looney's Sheet Metal Shop with insurance coverage for Longshoremen's Act claims. The Act then provided for payment of death benefits to survivors of disabled maritime workers who had died as a result of the injuries giving rise to their disability. See 33 U.S.C. § 909 (1970). See also State Insurance Fund v. Pesce, 548 F.2d 1112, 1114 (2d Cir. 1977). This statutory provision was in effect in April of 1970, when Travelers ceased insuring Looney's Sheet Metal Shop. ¹ In 1972 Congress passed a number of amendments to the Longshoremen's Act, one of which significantly expanded the availability of death benefits under section 909. This amendment is the central concern of this case; the pertinent language reads:

If the injury causes death, or if the employee who sustains permanent total disability due to the injury thereafter dies from causes other than the injury, the compensation shall be known as a death benefit and shall be payable in the amount and to or for the benefit of the persons following ....

33 U.S.C. § 909 (1976) (emphasis added).

After Marshall's death, Mary Marshall, his widow, filed a claim for death benefits under section 909. Following a hearing, an administrative law judge issued an order awarding Mrs. Marshall death benefits under the 1972 amendment to section 909, and assigning liability for those benefits to Travelers Insurance Company. Travelers appealed this order to the Benefits Review Board, which affirmed the administrative law judge's decision. Record, vol. 1 at 1. The company then petitioned for review in this court. 33 U.S.C. § 921(c) (1976).

II

Travelers asserts that section 909 is constitutionally infirm, and thus that the Company may not be held liable for death benefits under the Act. In particular, Travelers argues that: Congress exceeded its authority to legislate on matters of admiralty by enacting this amendment to section 909, and thus the amendment is void; the 1972 amendment to section 909 is impermissibly retroactive; ² and, even if otherwise constitutional, the amendment to section 909 is constitutionally intolerable as applied to petitioner. We find these arguments unpersuasive and affirm the Board's decision.

III

A

Petitioner first contends that Congress exceeded its authority to legislate on admiralty matters by enacting the 1972 amendment to section 909. As petitioner sees it, the amendment's provision of benefits for death causally unrelated to a maritime injury has an insufficient nexus with maritime concerns.

As an initial aside we must emphasize that the Longshoremen's and Harbor Workers' Compensation Act is constitutional beyond peradventure. Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932). This is indicative of the broad power Congress has to legislate on admiralty matters. Furthermore, it is evident that

The authority of the Congress to enact legislation of this (maritime) nature (is) not limited by previous decisions as to the extent of the admiralty jurisdiction. We have had abundant reason to realize that our experience and new conditions give rise to new conceptions of maritime concerns. These may require that former criteria of jurisdiction be abandoned, as, for example, they were abandoned in discarding the doctrine that the admiralty jurisdiction was limited to tidewaters. The Genesee Chief, 12 How. 443, 13 L.Ed. 1058, overruling The Thomas Jefferson, 10 Wheat. 428, 6 L.Ed. 358.

Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 52, 55 S.Ct. 31, 41-42, 79 L.Ed. 176 (1934).

It is thus clear that the Congressional admiralty power "permits of the exercise of a wide discretion," Panama R. R. v. Johnson, 264 U.S. 375, 386, 44 S.Ct. 391, 394, 68 L.Ed. 748 (1924); we believe that discretion was reasonably exercised in passage of the 1972 amendment to section 909.

Section 909 provides death benefits to the survivors of maritime workers who, during the course of maritime employment, suffered permanently totally disabling injuries. The maritime injury "is the pivot of the statute," Crowell v. Bemon, 285 U.S. 22, 56, 52 S.Ct. 285, 294, 76 L.Ed. 598 (1932); thus, "(t)he maritime nexus is obvious." Todd Shipyards Corp. v. Witthuhn, 596 F.2d 899, 904 (9th Cir. 1979). Therefore, the death benefit scheme of section 909 is clearly in furtherance of the purpose of the Longshoremen's Act, and is both maritime in nature and a proper subject for Congressional legislation. Norfolk, Baltimore & Carolina Lines, Inc. v. Director, Office of Workers' Compensation Programs, 539 F.2d 378, 380 (4th Cir. 1976), cert. denied, 429 U.S. 1078, 97 S.Ct. 823, 50 L.Ed.2d 798 (1977). See also Puig v. Standard Dredging Corp., 599 F.2d 467, 470-71 (1st Cir. 1979).

B

Petitioner next contends that the amendment to section 909 is impermissibly retrospective. This argument is comprised of a basic contention and two corollaries. First, by altering the pre-existing relation between Travelers and the beneficiaries under its insurance coverage of Looney's Sheet Metal Shop, the Act is retrospective in effect. Travelers argues that acceptance of this proposition leads to two conclusions: retrospective application of the law, that is allowance of death benefits for those injured pre-amendment, and assignment of liability therefor to the insurer on the risk at the time of injury, is improper because the statute does not mandate that it should be so applied; and, the retrospective scheme of the Act is a denial of due process. ³

The question of whether the 1972 amendment to section 909 constitutes a retroactive statute is a difficult one. It is clear that prior to the amendment, Travelers had contracted to provide benefits based upon deaths causally related to a permanent, totally disabling maritime injury. The 1972 amendment, however, provided that death benefits were to be paid to the survivors of those deceased workers who, whatever the cause of death, suffered from a maritime-related permanent total disability at the time of death. As applied to Travelers, therefore, the statute seems to have the effect of looking back to an insurance transaction and substituting a new, distinct term of coverage. To the claimant under the policy, however, the cause of action for death benefits based on a post-amendment death clearly arises after the passage of the 1972 amendment, and thus the statute also appears prospective. See Hampton Roads Stevedoring Corp. v. O'Hearne, 184 F.2d 76, 79-80 (4th Cir. 1950). Several federal circuit courts have addressed this perspectival clash. For example, compare Puig v. Standard Dredging Corp., 599 F.2d 467, 469-70 (1st Cir. 1979) (right to section 909 death benefits arises at death; therefore, if death post-amendment, Act not retroactive) with Norfolk, Baltimore & Carolina Lines, Inc. v. Director, Office of Workers' Compensation Programs, 539 F.2d 378, 380 (4th Cir. 1976), cert. denied, 429 U.S. 1078, 97 S.Ct. 823, 50 L.Ed.2d 798 (1977) ("Appellants' claim (of retroactivity), nevertheless, is quite understandable, for as a practical matter there is a death benefit post-1972 which was not there in previous years."). We agree with the approach of the fourth circuit, however, that "resolution of this conflict of views is not required," Norfolk, supra, 539 F.2d at 380, for a judicially sound disposition of this appeal. Whether or not the operation of the statute is properly deemed retrospective, the petitioner's contentions do not undermine its validity.

Although not favored, retrospective statutes are not per se unconstitutional. Stephens v. Cherokee Nation, 174 U.S. 445, 477-78, 19 S.Ct. 722, 734, 43 L.Ed. 1041 (1899); Blount v. Windley, 95 U.S. 173, 180, 24 L.Ed. 424 (1877). Therefore, whether section 909 was meant to be applied, as it was here, to assign death benefit liability for a post-amendment death to an insurance company providing coverage at the time of a disabling pre-amendment injury, becomes first a matter of statutory construction, and only later a matter for constitutional scrutiny.

The language of section 909 makes it clear that, while a cause of action for death benefits certainly does not arise until death, death is not the only operative fact relevant to a determination of the availability of...