Associated Indemnity Corporation v. Marshall, 7118.
| Decision Date | 31 May 1934 |
| Docket Number | No. 7118.,7118. |
| Citation | 71 F.2d 235 |
| Parties | ASSOCIATED INDEMNITY CORPORATION et al. v. MARSHALL et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
E. L. McDougal and Lawrence Lister, both of Portland, Or., and John J. Taheny and R. O. Purvis, both of San Francisco, Cal., for appellants.
W. A. Illidge, of Portland, Or., for appellee Thomas.
Before WILBUR, GARRECHT, and MACK, Circuit Judges.
Section 21 (a) of the Longshoremen's and Harbor Workers' Compensation Act (33 USCA § 921 (a) provides that a compensation award shall become final thirty days after it has been filed "unless proceedings for the suspension or setting aside of such order are instituted as provided in subdivision (b) of this section"; subdivision (b), 33 USCA § 921 (b) places no time limit upon the bringing of such proceedings.
On December 12, 1931, an award was made under the act in favor of John Thomas who was injured while in the employ of W. J. Jones & Sons, Inc., one of the appellants herein. On January 11, 1932, a bill of complaint was filed by Thomas against the Deputy Commissioner to set aside the award on the ground that there had been error in the method of computation and praying that the matter be referred back to the Deputy Commissioner with instructions to correct the award. After having obtained permission to intervene in that suit, the Associated Indemnity Corporation, one of the appellants herein, on March 1, 1932, filed an answer and a cross-complaint alleging that the Deputy Commissioner had erred in making a greater award than the law permitted and that the complainant was indebted to the intervening defendant in the amount of the overpayments already received.
On August 16, 1932, the bill of complaint in the instant suit was filed, attacking the amount of the award. The prayer was that the award be set aside, and that a finding be made that the defendant John Thomas had no further compensation due him but on the contrary had been overpaid in the amount of $416.60.
The appeal is from the order of the District Judge dismissing this latter bill of complaint, apparently on the ground that it had not been filed until after the expiration of the statutory thirty-day period when the award became final as against the plaintiffs therein. The cross-complaint of the Associated Indemnity Corporation in the suit instituted by John Thomas was also dismissed, probably for the same reason; but that order is not before us for review.
Appellants contend that their complaint was not filed too late because appellee Thomas' suit, commenced within the thirty-day period of the statute, prevented the Deputy Commissioner's order from becoming final. According to this contention, the institution of suit by one party would permit suit by the other party at any time before the conclusion of the first suit. Such an interpretation is not required by the wording of section 21 and comports ill with the general scheme of the act. Although there is no limitation in section 21 (b) on the time of bringing suit to set aside an award, a thirty-day limitation, at least when there has been no earlier suit by the other party, is quite clearly implied from section 21 (a). See Twine v. Locke, 68 F. (2d) 712, 714 (C. C. A. 2, 1934); Globe Stevedoring Co., Inc., v. Peters, 57 F.(2d) 256, 259 (D. C. S. D. Tex., 1931). And there is no logical necessity for assuming, because the suit by one party for the purpose of setting aside the order prevents the order from becoming final in the sense that it may be enforced under paragraph (c) of section 21 (33 USCA § 921 (c), that it also leaves the order open to attack by the other party under paragraph (b), 33 USCA § 921 (b). Although in form not an appeal, a proceeding to set aside the award is somewhat analogous to an appeal; certainly an appeal of one party from a judgment would not ordinarily indefinitely extend the time of the other party to appeal or subject the judgment to attack by the other party. Cf., Bothwell v....
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Todd Shipyards Corp. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor
...was a matter solely between the claimant and his attorney and could not increase the employer's liability. Associated Indemnity Corporation v. Marshall, 71 F.2d 235 (9th Cir. 1934). After 1972, however, awards of attorney fees in cases such as this are a separate liability of the employer a......
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