Brown v. American Mail Line, Ltd.
| Decision Date | 23 April 1980 |
| Docket Number | Nos. 78-1053,79-4165 and 79-4167,s. 78-1053 |
| Citation | 625 F.2d 221 |
| Parties | Felix F. BROWN, Sr., Plaintiff-Appellee, v. AMERICAN MAIL LINE, LTD., and American President Lines, Corporations, Defendants, and Fireman's Fund Insurance Company, Lien-Claimant-Appellant. Michael W. RYAN, Plaintiff-Appellee, v. EAGLE LINE, INC., MONROVIA, Defendant, and Brady-Hamilton Stevedore Company and Fireman's Fund Insurance Company, Intervenors-Appellants. Harold E. ROGERS, Plaintiff-Appellee, v. ORIENT MARINE ASSOCIATES LTD., MONROVIA, Defendant, Brady-Hamilton Stevedore Company and Fireman's Fund Insurance Company, Intervenors-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John Dudrey, Fredrickson, Weisensee & Cox, Portland, Or., argued, for lien-claimant-appellant; Floyd A. Fredrickson, Fredrickson, Weisensee & Cox, Portland, Or., on brief.
Raymond J. Conboy, argued, Pozzi, Wilson, Atchison, Kahn & O'Leary, Portland, Or., on brief, for plaintiff-appellee.
Appeal from the United States District Court for the District of Oregon.
Before HUG and FARRIS, Circuit Judges, and McNICHOLS, * District Judge.
Fireman's Fund appeals a district court order awarding Brown a pro-rata share of attorney's fees incurred by Brown in obtaining a third party settlement from an allegedly negligent vessel owner. The district court, 437 F.Supp. 628, held that because Fireman's Fund would recover from the settlement an amount equal to the benefits it paid Brown under the Longshoremen's and Harbor Workers' Compensation Act, it should pay a portion of the attorney fees incurred by Brown in obtaining the settlement. We reverse.
On March 24, 1973 Felix Brown, an employee of Western Stevedoring and Terminal Corporation, was injured while working as a longshoreman on board the vessel Indian Mail. The District Court for the District of Oregon determined that 80% of the injury was caused by the vessel owner's negligence and 20% was caused by Western's negligence. Brown and the vessel owner settled the action for $65,000.
Between the date of the injury and the date of the settlement, Fireman's Fund (Western's insurer for benefits under the Longshoremen's Act) paid Brown $23,311.72 for lost wages and medical expenses. Because Fireman's Fund did not consent to Brown's third party settlement, it was not liable to Brown for any future benefits and its lien against Brown's settlement was fixed at $23,311.72. Brown claimed, and the district court held, that Fireman's Fund should pay a pro-rata share of the attorney's fees he incurred in obtaining the settlement.
The Longshoremen's and Harbor Workers' Compensation Act provides that a vessel owner can be sued for the injury of a longshoreman by either the longshoreman or, if the longshoreman fails to bring suit within six months after a compensation award has been filed, by the longshoreman's employer. 33 U.S.C. § 933(b). When an employer brings suit, the Act states that the employer is to retain from any settlement an amount equal to the expenses incurred in obtaining the recovery, including attorney's fees, in addition to all benefits paid to the injured longshoreman. 33 U.S.C. § 933(e)...
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