787 F.2d 910 (4th Cir. 1986), 84-1156, Garvin v. Alumax of South Carolina, Inc.

Docket Nº:84-1156.
Citation:787 F.2d 910
Party Name:Barbara J. GARVIN, James Edward Garvin, Jr., Appellees, v. ALUMAX OF SOUTH CAROLINA, INC., a Delaware Corporation, Appellant, and Alesa Alusuisse Engineering, A.G., a Swiss Corporation, Reggiane, an Italian Corporation and Specimas, an Italian Corporation, Defendants.
Case Date:April 01, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 910

787 F.2d 910 (4th Cir. 1986)

Barbara J. GARVIN, James Edward Garvin, Jr., Appellees,


ALUMAX OF SOUTH CAROLINA, INC., a Delaware Corporation, Appellant,


Alesa Alusuisse Engineering, A.G., a Swiss Corporation,

Reggiane, an Italian Corporation and Specimas, an

Italian Corporation, Defendants.

No. 84-1156.

United States Court of Appeals, Fourth Circuit

April 1, 1986

Argued Oct. 2, 1984.

Reargued Feb. 5, 1985.

Page 911

Henry B. Smythe, Jr. (David B. McCormack, Buist, Moore, Smythe & McGee, Charleston, S.C., on brief), and M. Dawes Cooke, Jr. (Barnwell, Whaley, Patterson & Helms, Charleston, S.C., on brief), for appellant.

George E. Campsen, Jr. (Marvin D. Infinger, Sinkler, Gibbs & Simons, Charleston, S.C., on brief), for appellees.

Before RUSSELL and MURNAGHAN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

HAYNSWORTH, Senior Circuit Judge:

Garvin was seriously injured while doing maintenance work on a ship loader located upon a pier. He was collecting compensation under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. Sec. 901 et seq., when he filed this action against the firms that allegedly designed and manufactured the machine and some of its component parts and against the contractor-owner of the machine who had contracted with Garvin's immediate employer for its operation and maintenance. He alleged liability under the South Carolina Strict Liability statute, S.C.Code Sec. 15-73-10 et seq., and in negligence. Alumax, the contractor and owner of the unloader, was not a seller of the machine and the claim against it was grounded solely upon common law negligence.

Alumax filed a motion to dismiss on the ground that it was the statutory employer of the plaintiff and immune from this common law tort action against it under South Carolina's Workmen's Compensation Act, Sec. 42-1-540. The district court denied the motion, reasoning that since the LHWCA affirmatively extends immunity only to the subcontractor, which had procured compensation insurance, the two statutes were repugnant, the federal Act took precedence under the supremacy clause, and Alumax was not immune from suit.

While the case against all the other defendants is pending, the district court certified its decision for an immediate appeal under the provisions of 28 U.S.C.A. Sec. 1292(b). This court granted leave to appeal.

Finding no repugnancy in the two statutes in the context of this state law tort claim, we reverse and hold that Alumax is entitled to the immunity conferred upon it by South Carolina law.


Alumax is an importer of alumina ore, which it converts into aluminum. It is a joint lessee of a terminal near Charleston, South Carolina for the unloading of ocean-going vessels and is the owner of the alumina ore unloading machine installed on the pier.

The terminal is operated by Lemm Corporation-Operations, Garvin's immediate employer, and it is responsible for the operation and maintenance of the unloading machine. Lemm procured workmen's compensation insurance, as it was contractually required to do, but the premium costs were treated as costs of operation that Alumax paid.

While performing routine maintenance work on the unloading machine, Garvin came in contact with electrically energized members. He was severely shocked and suffered the loss of both arms.


Preliminarily, we address the question of our subject matter jurisdiction, though we conclude that we have jurisdiction to adjudicate the merits of the question presented by the parties.

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Garvin and his wife filed their original complaints in the United States District Court for the District of South Carolina. They alleged that federal jurisdiction was present because of diversity of citizenship and the presence of the requisite amount in controversy. That allegation, though correct as to all of the other defendants, turned out to be incorrect as to Alumax. Alumax, however, did not immediately raise the jurisdictional question. Instead, it moved for a dismissal on the ground that it was Garvin's statutory employer and that neither Garvin nor his wife, claiming through him, 1 had any cause of action against it for his work-related injury.

In order to avoid dismissal of the complaint on the merits, Garvin filed a second amended complaint. In that complaint, he alleged federal question jurisdiction. Specifically, it was alleged that Garvin was receiving compensation under the LHWCA; that under that statute, as amended, Alumax, as the remote employer, had no immunity; that the federal and state statutes were repugnant; and that the provisions of the federal statute should prevail under the Supremacy Clause. Conceding that there was no right of action under state law, it was alleged that a determination that the federal statute had the meaning and the effect for which the plaintiff contended was "essential" to his cause of action.

As indicated earlier, the district judge was persuaded, holding that the two statutes, indeed, were repugnant and that the federal statute prevailed rendering inapplicable South Carolina's protection of statutory employers.

It may well be that we are all agreed that the LHWCA does not purport to create any rights of action in consequence of any land based injury not caused by a vessel. At least by indirection, however, it is the contention of the plaintiff, and the holding of the district judge, that it does. The South Carolina statute, Sec. 42-1-540, provides that acceptance of the compensation scheme "shall exclude all other rights and remedies of such employee" and those claiming through him. If that provision is rendered inapplicable by the LHWCA, as amended in 1984 specifically to permit injured employees of subcontractors to sue the general contractor unless the subcontractor had failed to procure compensation insurance and the general contractor had been compelled to do so, then the LHWCA has created a cause of action when none otherwise would exist. Its creation may be somewhat indirect when, under the South Carolina statutes, Garvin has neither right nor remedy, but plaintiff's claim of a right to sue is clearly derived from the federal statute.

The South Carolina statute speaks in terms of the exclusion of all other rights and remedies. If a covered employee of a complying employer is injured on the job, a right of compensation accrues, but no common law action for damages accrues as against his immediate or remote employer. When one views the state scheme in terms of the plaintiff's search for a right to sue, the invocation of the federal statute takes on a decidedly "offensive" cast. The plaintiff has an immediate need for the federal provision because, without it, he may not proceed.

For convenience, however, the statutory deprivation of an injured employee of his right of action against his employer is frequently described as the employer's immunity. If one speaks in terms of immunity, the effect of the federal statute might seem a bit more indirect. It might be argued that South Carolina has always preserved the right of action by an injured employee against a statutory employer and provided an appropriate remedy, but, at the same time, has clothed the statutory employer with immunity. In that posture, the plaintiff's contention is given a more defensive coloration. If it is thus contended that an injured employee may state a perfectly good claim against his statutory employer for negligent infliction of physical injury and the statutory employer's reliance upon

Page 913

the statute is labeled a claim of immunity, then the plaintiff's reference to the LHWCA may seem a federal response to an anticipated state law defense. This, however, is only a circuitous statement of the plaintiff's claim that the LHWCA gives him a right to proceed which otherwise he would not have.

Federal question jurisdiction can be invoked only when the federal question appears on the face of the plaintiff's complaint. Usually, the plaintiff's right must be, in part at least, a federal right, and federal question jurisdiction may not be invoked by an allegation of an anticipated federal defense or a federal response to an anticipated state law defense. See Louisville & Nashville Railroad Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). Mottley is at one end of the spectrum. The plaintiffs stated a perfectly good breach of contract claim governed entirely by state law. They went further, however, and alleged that the Railroad sought to justify or excuse its non-performance by reference to a recently enacted federal statute governing the issuance of passes to railroad passengers. They went still further and alleged that the federal statute was unconstitutional as applied if it were held to require that the Railroad refuse further performance of its contractual obligation.

There, the federal statute was clearly separable from the plaintiffs' claim. The plaintiffs' cause of action was sufficiently stated without reference to the federal statute. That reference was only in anticipation of the Railroad's defense. 2

The plaintiff concedes that he has no right of action under South Carolina law; he claims that he does have a right of action under the LHWCA and alleges that a construction and application of that statute in accordance with his contentions is essential to his cause of action. Whether one accepts the plaintiff at his word, however, and looks upon the federal statute as an essential ingredient of the plaintiff's claimed cause of action, or whether one looks upon the federal statute, as construed by the plaintiff, as stripping away the state created absolute immunity of the defendant, leaving it open to the plaintiff's attack, should...

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