Coal Operators Cas. Co. v. United States, 175 of 1945.

• Decision Date: 21 January 1948
• Docket Number: No. 175 of 1945.,175 of 1945.
• Citation: 76 F. Supp. 681
• Parties: COAL OPERATORS CAS. CO. v. UNITED STATES et al.
• Court: U.S. District Court — Western District of Pennsylvania

76 F. Supp. 681

COAL OPERATORS CAS. CO. v. UNITED STATES et al.

No. 175 of 1945.

District Court, E. D. Pennsylvania.

December 8, 1947.

On Motion to Modify and Amend Judgment January 21, 1948.

J. Webster Jones, of Philadelphia, Pa., for plaintiff.

Conlen, LaBrum & Beechwood, of Philadelphia, Pa., for respondents.

KIRKPATRICK, District Judge.

In this case Williams, the injured employee, accepted compensation under an award of the Deputy Commissioner, whereupon, by force of Sec. 33(b) of the Longshoremen's Compensation Act, 33 U.S.C.A. § 933(b), his right to sue a third party for damages for negligently causing his injury passed to his employer. The employer did not sue but its insurance carrier, subrogated to its rights under Sec. 33(i), brought this suit in admiralty against the shipowner. The Court's findings of fact were to the effect that Williams' injury was due to the concurrent negligence of the shipowner and the employer, and his damages were fixed at $27,000.

The question is whether the entire amount must be awarded to the libellant in this proceeding or whether the Court should apply the admiralty rule of contribution between joint tortfeasors and reduce the libellant's recovery accordingly.

The libellant contends that there can be no contribution in a case of this kind where one of the joint tortfeasors stands in the shoes of an employee who has accepted compensation, arguing that the Act is the sole source of every right asserted in this proceeding and pointing out that the assignment to the employer provided for by Sec. 33(b) is of "all" the right of the employee. This contention is answered by what the Circuit Court of Appeals said in The Etna, 3 Cir., 138 F.2d 37, 41: "On the contrary, we think that the intent and scheme of the Act requires that the employer's right to subrogation for compensation payments made in the circumstances here shown be recognized wholly apart from and without regard for the assignment provided for in Sec. 33(b) of the Act."

A more serious objection is that stated in the opinion of the Circuit Court of Appeals in Porello v. United States, 2 Cir., 153 F.2d 605, 607, as follows: "For a right of contribution to accrue between tort-feasors, they must be joint wrongdoers in the sense that their tort or torts have imposed a common liability upon them to the party injured. A.L.I. Restitution, § 86; 13 Am. Jur., Contribution, § 51. Since the libellant has no cause of action against his employer, the United States can claim no contribution on the theory of a common liability which it has been compelled to pay." The Porello case, however, was appealed and the Supreme Court opinion, 330 U.S. 446, 67 S.Ct. 847, 854, contains one statement which I cannot read in any other way than as overruling the position taken by the Circuit Court of Appeals upon this point. Justice Reed was discussing the effect of a contract of indemnity between the employer and the shipowner, and said that on the record the contract was ambiguous and, for that reason, the Supreme Court ruled that the case should go back to the District Court for an interpretation. The Supreme Court suggested that one possibility was that the District Court might find that the contract of indemnity had to do only with a case where the employer's negligence was the sole cause of the injury, in which event it would have no bearing on the case. Then the Court said, "If the District Court interprets the contract not to apply to the facts of this case (and the facts of the case, like the present one, were an injury to an employee caused by the joint negligence of employer and shipowner) the court (that is, the District Court) would, of course, be free to adjudge the responsibility of the parties to the contract under applicable rules of admiralty law", and just above the Court had stated that the admiralty rule recognized contribution between joint tortfeasors. Now what the Supreme Court said was not dictum. The Supreme Court was remanding the case to the District Court with instructions and in the sentence quoted was telling the District Judge that, absent the contract of indemnity, he would be free to apply the admiralty rule of contribution. The Circuit Court of Appeals had squarely ruled that there could be no contribution and the...