Bundens v. J.E. Brenneman Co., 94-3163
| Decision Date | 09 February 1995 |
| Docket Number | Nos. 94-3163 and 94-3175,No. 94-3163,No. 94-3175,94-3163,94-3175,s. 94-3163 and 94-3175 |
| Citation | 46 F.3d 292 |
| Parties | Barbara J. BUNDENS, (widow of Howard E. Bundens), Petitioner () v. J.E. BRENNEMAN COMPANY; Travelers Insurance Company; and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents. J.E. BRENNEMAN COMPANY and Travelers Insurance Company, Petitioners () v. Barbara J. BUNDENS (widow of Howard E. Bundens) and Director, Office of Workers' Compensation Programs, United States Department of Labor; Benefits Review Board, Respondents. |
| Court | U.S. Court of Appeals — Third Circuit |
Gabriel D. Cieri (argued), Krusen, Evans & Byrne, Philadelphia, PA, for J.E. Brenneman Co. petitioner in No. 94-3175 respondent in No. 94-3163, and Travelers Ins. Co., petitioner in No. 94-3175 respondent in No. 94-3163.
Allen H. Feldman, Deborah Greenfield (argued), Joshua T. Gillelan, II, Nathaniel I. Spiller, U.S. Dept. of Labor, Office of the Sol., Washington, DC, for Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor respondent in Nos. 94-3163 and 94-3175.
BEFORE: BECKER and COWEN, Circuit Judges, and POLLAK, District Judge *.
Claimants are the widow and son of a deceased diver and dockbuilder. They appeal the decision of the United States Department of Labor, Benefits Review Board ("Board"), which held that the decedent's employer was not required to pay benefits under the Longshore Harbor Workers Compensation Act, 33 U.S.C. Sec. 901, et seq., ("LHWCA") due to statutory exemption and credit provisions which applied as a result of a court-approved settlement of their previous federal court litigation. The employer has filed a protective cross-appeal solely to preserve its right to have this court examine the employment status of the decedent in the event that we reverse the Board on the release and credit issues.
We will affirm the order of the Board that the decedent was a harbor worker, not a seaman. Although the Board concluded that the employer could receive a full credit under either Sec. 903(e) or Sec. 933(f), we hold that only when these two sections are applied together do they provide a credit to the employer where the apportionment of funds between prior settled claims is unknown. The Board concluded that the "written approval" requirement of Sec. 933(g)(1) does not apply. We will affirm the order of the Board, however, on other grounds. Next, we will affirm its determination that the notice provision of Sec. 933(g)(2) was satisfied by virtue of the employer's participation in the tort settlement. Finally, we will reverse the order of the Board that the claimants are not entitled to any benefits under the LHWCA and remand this case for further proceedings consistent with this opinion.
Howard Bundens ("decedent") was employed by J.E. Brenneman Co. ("Brenneman") as a diver and dockbuilder on a variety of marine construction jobs. On August 29, 1978, decedent had been assigned with other employees of Brenneman to the Monsanto pier on the Delaware River to remove a damaged mooring platform, known as a dolphin. A tug boat towed Brenneman's heavy-lifting derrick barge, the Conqueror, to the Monsanto main pier where it picked up the decedent together with the other members of the crew. Before going down-river to the area of the broken dolphin, the Conqueror attached an anchor cable from its bow to the main pier. The tug then towed the barge some distance past the site of the broken dolphin. At that location, the Conqueror set an anchor off its stern. The tug next brought the Conqueror back near the site of the broken dolphin and departed. By pulling itself with its winches along the cables at its bow and stern, the Conqueror was able to maneuver along the pier to facilitate cutting and removal of the damaged dolphin.
The decedent and other workers performed this work by using torches to cut the steel H-beam supports underneath the dolphin, while the Conqueror's 90-ton derrick supported the weight of the dolphin. The workers did the cutting work from planks fastened to the beams under the dolphin and from float stages, which were floating wooden work platforms about forty feet long. When the dolphin was cut free, the derrick lifted it onto the deck of the barge.
After this task was accomplished, the decedent walked back to the main pier via the shoreline. Meanwhile, the crew made ready to move the Conqueror to a location at Monsanto's main pier where it was to be secured for the night. The Conqueror maneuvered itself down-river to weigh its stern anchor and then pulled itself back up-river along its bow cable approximately 300 feet past the damaged pier to the main pier. Once the Conqueror arrived at the site at the main pier where Brenneman intended to moor her overnight, several lines were heaved to the decedent and another worker on the pier, and the anchor cable at the bow was unfastened.
A strong wind caused the bow of the Conqueror to "hang up" behind a piling at the pier and, simultaneously, the stern pitched out into the river. Decedent went on board the Conqueror to help pull the aft end of the barge closer to the pier. Several workers, including the decedent, rigged an additional mooring line from a point on the pier, around and through various points at the stern of the barge, and along the starboard side. The line continued through a fair lead block, also known as the main snatch block (which was affixed to the deck), and then onto a winch drum or spool. Once the line was through this last fair lead block, the decedent took the end of the line and wrapped it several times around the spool. Due to the tension on the mooring line created by the spool, without warning the fair lead block broke. The decedent was killed almost instantly when he was struck by either a piece of the broken fair lead block or the ruptured line. 1
Barbara Bundens ("Bundens"), on behalf of herself, her minor son, Gregory Bundens, and her deceased husband's estate, filed a tort action in the United States District Court for the Eastern District of Pennsylvania on March 13, 1979. 2 The next day, Bundens filed a claim for death benefits on behalf of herself and her son under the LHWCA. Bundens contacted the Deputy Commissioner of the Office of Workers' Compensation Programs to request that the LHWCA claim be held in abeyance pending the termination of the federal court action. In the federal court action, Bundens asserted claims against Brenneman both under the Jones Act and as the vessel owner for negligence under 33 U.S.C. Sec. 905(b) of the LHWCA. 3 When Brenneman filed a motion for summary judgment on December 9, 1981, claiming that as a matter of law the decedent was not a seaman under the Jones Act. Bundens by cross-motion for summary judgment claimed that the decedent was either a seaman under the Jones Act or a harbor worker under the LHWCA. The district court denied both motions.
Brenneman joined additional parties as third-party defendants, Bundens filed suits against these parties as direct defendants. 4
Extensive settlement negotiations ensued, after which Bundens and all defendants entered into a comprehensive settlement of the federal litigation. The settlement provided for: (1) a Release Agreement ("Release") between Bundens and Brenneman; (2) an Indemnity Agreement ("Indemnity") between the same parties; and (3) a Settlement Agreement and Mutual Release ("Settlement") among all of the co-defendants.
The Release provided that in exchange for one million dollars, Bundens released Brenneman (but not any compensation insurance carrier) from all tort claims arising out of and related to the death of the decedent. The Release was structured in such a way as to preserve Bundens' right to pursue the LHWCA claim for death benefits that had been filed earlier. The Release also preserved any factual or legal contentions that could be raised in the LHWCA proceedings, including a defense by the compensation carrier that its liability had been discharged by virtue of the federal court settlement. 5
The Indemnity was designed to ensure that Brenneman would not have to pay in excess of one million dollars as a consequence of decedent's death. Thus, in the event that Travelers Insurance Company ("Travelers"), 6 made a claim against Brenneman for reimbursement for any monies paid to Bundens as compensation benefits under the LHWCA, Bundens agreed to indemnify and hold Brenneman harmless from any liability, including counsel fees. The Indemnity anticipated that, if Travelers were to succeed in an action against Brenneman, the amount of benefits already paid to Bundens, combined with Brenneman's costs and counsel fees incurred in defending Travelers' indemnity claim, would not exceed $400,000. Accordingly, the Indemnity specified the sum of $400,000 to be set aside out of the $1,000,000 paid to Bundens under the Release.
The Settlement executed among all of the defendants in the district court litigation dismissed with prejudice all of the Bundens' claims. 7 It also fixed the respective amount that each defendant would contribute to the $1,000,000 settlement established in the Release. 8
Although Travelers was invited to participate in the settlement negotiations, it declined. After the settlement was reached on June 8, 1983, Travelers filed a motion to intervene in the federal court litigation with the intention of opposing the settlement as an attempt by Bundens to receive a double recovery. The motion to intervene was denied on the grounds that Travelers was not prejudiced by the settlement.
The district court approved the Settlement Agreement and the...
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