Caldwell v. Ogden Sea Transport, Inc.
| Decision Date | 27 March 1980 |
| Docket Number | GOTAAS-LARSEN,78-1258,78-1333,Nos. 78-1257,MOORE-M,78-1505 and 78-1653,78-1455,s. 78-1257 |
| Citation | 618 F.2d 1037 |
| Parties | Charles A. CALDWELL, Appellant, v. OGDEN SEA TRANSPORT, INC., Appellee. Wilbert C. HAROLD, Appellant, v. COMPANHIA DE NAVEGACAO MARITIMA NETUMAR, Appellee. Melvin BANDY, Appellant, v. BANK LINE, LTD., Appellee. James BRAITHWAITE, Appellant, v.cCORMACK LINES, INC., Appellee. Wallace CURRY, Appellant, v. COMPANIA CRASATLANTICA ESPANOLA, S. A., Appellee. William Edward SWEENEY, Appellant, v.ARGENTINA, S. A. and Gotaas-Larsen, Inc., both foreign corporations or associations, as owners and/or operators of the Argentine M/V GAUCHO LAGUNA, and The Chesapeake and Ohio Railway Company, a Virginia corporation or association, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
C. Arthur Rutter, Jr., Norfolk, Va., John H. Klein, Keller, Va. (Breit, Rutter & Montagna, Norfolk, Va., on brief), Burt M. Morewitz, Norfolk, Va. (Marshall, Blalock, Garner & Millner, W. Glover Garner, Jr., Newport News, Va., Arthur C. Ermlich and Melvin J. Radin, Norfolk, Va., on brief), for appellants.
John B. King, Jr., Norfolk, Va. (Vandeventer, Black, Meredity & Martin, Norfolk, Va., on brief), John R. Crumpler, Jr., Norfolk, Va. (Seawell, McCoy, Dalton, Hughes, Gore & Timms, Norfolk, Va., on brief), Richard Wright West, Newport News, Va., for appellees.
Before WIDENER and PHILLIPS, Circuit Judges, and ROBERT R. MERHIGE, District Judge, sitting by designation.
These six consolidated appeals present issues arising under the Longshoremen's and Harborworkers' Compensation Act, 33 U.S.C. §§ 901 et seq., (LHWCA) relating to the prosecution by longshoremen of personal injury claims against allegedly negligent third person shipowners after having received statutory compensation benefits from their employers or the insurers of the employers. In each of these cases a workman injured on his job brought a third person LHWCA action more than six months after receipt of the last of compensation benefits paid without contravention of liability by an employer or his insurer. Principally because LHWCA automatically assigns to the employer or insurer any third person claim not prosecuted by the longshoreman within six months after an "award" of statutory benefits, summary judgment was given in favor of each of the defendants. As to each of the six appeals, consolidated in this court because of substantial common questions, we vacate and remand for further proceedings.
Various questions common to all the appeals and some related only to individual appeals are presented. The first common question is whether under § 933 of LHWCA the six-months period during which the exclusive right of action lies with the longshoremen is triggered by the uncontested payment of compensation benefits. A second common question is whether, if the period is so triggered, a concurrent right of action shared by the longshoremen with the assignees nevertheless survives the six months period. A final common question is whether, if assigned, the right of action may nonetheless be revested in the longshoreman upon failure of the assignee to prosecute the claim because of a presumed or demonstrated conflict of interest. As to the claimant Caldwell, in No. 78-1257, a separate question is whether an actual reassignment of the claim, if made by the insurer-assignee, would be effective to revest the right of action in the longshoreman in any event. As to the claimant Sweeney in No 78-1653, separate questions related to additional statutory claims other than under LHWCA are raised. As to the claimant Bandy in No. 78-1333, the question is raised whether reassignment may have occurred by waiver. These are discussed in the order given.
The first common question requires interpretation of the critical third person claim procedures provided in §§ 933(a), (b) and (h) of LHWCA. In their current form these provide:
(a) If on account of a disability or death for which compensation is payable under this chapter the person entitled to such compensation determines that some person other than the employer or a person or persons in his employ is liable in damages, he need not elect whether to receive such compensation or to recover damages against such third person.
(b) Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner or (the Benefits Review) Board shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award.
(h) Where the employer is insured and the insurance carrier has assumed the payment of the compensation, the insurance carrier shall be subrogated to all the rights of the employer under this section.
Relying upon our decision in Liberty Mutual Insurance Co. v. Ameta & Co., 564 F.2d 1097 (4th Cir. 1977), the district court ruled that because each of the longshoremen plaintiffs had received his compensation "under an award in a compensation order filed by the deputy commissioner" more than six months prior to commencing his third person action, the rights of action on the claim had been assigned by operation of § 933(b) and (h) to the employer or insurer. Though holding further that the longshoremen might be found nonetheless entitled to maintain the actions by showing a disabling conflict of interest in the assignees, see Part III infra, the court found that this had not been shown on the summary judgment records and gave judgments accordingly for the shipowner defendants. 1
In Ameta we held that when, as here, compensation benefits were paid without any contravention of liability, the formal filing of the accident report and an attending physician's report, followed by notice of payment of compensation and notice that compensation payments had been stopped or suspended was sufficient affirmative action by the Deputy Commissioner to constitute an "award" under § 933(b). Appellants contend that uncontested payment of benefits should not be deemed to constitute an "award" of benefits, and seeking to avoid Ameta 's effect, suggest that we overrule it. That lies beyond our province as a panel of this court, even were we disposed to do so. See North Carolina Utilities Commission v. F. C. C., 552 F.2d 1036, 1044-45 & n.8 (4th Cir. 1977). By rejecting the suggestion in this way, we of course intimate no disposition to re-examine Ameta 's holding had we the power.
Next, appellants attempt to distinguish Ameta. In that case, the longshoreman after receiving compensation from the insurer, accepted $1000 from the third person shipowner and executed a release. The insurer then sued both the longshoreman and the third person shipowner to recover the amount of its compensation payments. We held that since the longshoreman had received his compensation under an award within the meaning of § 933(b) and more than six months had passed, his third person claim against the shipowner had been assigned by subrogation to the insurer who could therefore maintain the action. Though the facts are different here, we do not think they permit distinguishing Ameta on its critical holding. Here the same documents have been filed and more than six months have passed since the last compensation payment. 2 The only difference is that here the longshoreman is claiming the right of action rather than the subrogated insurer. But Ameta 's holding that the claim passed to the insurer upon the effective date of the award necessarily also means that it may not thereafter be asserted by the longshoreman, unless it is then held concurrently or is somehow actually or constructively thereafter reassigned. Those alternative possibilities are discussed in following Parts of this opinion, but the Ameta holding itself applies here to compel the conclusion that in each of the cases before us, the third person claim was assigned upon the passage of six months following last receipt of benefits to the paying employer or insurer.
The longshoremen next contend that the right of action on the third person claim should be deemed concurrently held by longshoremen and subrogated insurers after passage of the six months limitation period. Were we writing on a clean slate, strong policy considerations might be found to support such a position. LHWCA should be interpreted broadly in favor of the injured longshoreman. E. g., Voris v. Eikel, 346 U.S. 328, 333, 74 S.Ct. 88, 91, 98 L.Ed. 5 (1953). One of its objectives is to place "the burden ultimately on the company whose default caused the injury," Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315, 324, 84 S.Ct. 748, 754, 11 L.Ed.2d 732 (1964), and a negligent shipowner would seem to have no complaint if that burden is placed upon it by the longshoreman rather than the employer or its insurer. Courts have construed roughly comparable language in state workmen's compensation statutes to create a concurrent right to proceed against a third party tortfeasor. E. g., Parkhill Truck Co. v. Wilson, 190 Okl. 473, 125 P.2d 203 (1942). See generally 2A A. Larson, The Law of Workmen's Compensation § 75.40 (1974). Indeed, cases under LHWCA itself arguably may have taken such a position. See Clark v. Hutchison, 161 F.Supp. 35 (D.C.Z.1957); cf. Potomac Electric Power Co. v. Wynn, 120 U.S.App.D.C. 13, 343 F.2d 295 (D.C.Cir.1965) (per curiam) ().
Be that as it may, we conclude that the history of the legislation we apply precludes that interpretation. We do not write on a clean slate. While the longshoreman's right of action against negligent third persons has always been protected by LHWCA, he was required under the original...
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