O'Connell v. Maryland Steel Erectors, Inc.

• Decision Date: 05 July 1985
• Docket Number: No. 82-1486.,82-1486.
• Citation: 495 A.2d 1134
• Parties: John D. O'CONNELL, Appellant, v. MARYLAND STEEL ERECTORS, INC., et al., Appellees.
• Court: D.C. Court of Appeals

495 A.2d 1134

John D. O'CONNELL, Appellant, v. MARYLAND STEEL ERECTORS, INC., et al., Appellees.

No. 82-1486.

District of Columbia Court of Appeals.

Reargued April 1, 1985.

Decided July 5, 1985.

As Amended August 6, 1985.

Peter J. Vangsnes, Washington, D.C., for appellant. William C. Burgy and Karl N. Marshall, Washington, D.C., were on the briefs, for appellant.

Walter J. Murphy, Jr., Wheaton, Md., with whom Hubert W. Farrell, Wheaton, entered an appearance, for appellee Maryland Steel Erectors, Inc.

Gary W. Brown, Washington, D.C., entered an appearance for appellee Steele & Moroney, Inc.

Walter A. Smith, Jr., Washington, D.C., with whom Vincent H. Cohen and Robert B. Cave, Washington, D.C., were on the briefs for amicus, Washington Metropolitan Area Transit Authority.

Before NEBEKER and FERREN, Associate Judges, and REILLY, Chief Judge, Retired.

REILLY, Chief Judge, Retired:

This is an appeal from the dismissal of an action for negligence brought by a construction worker against the corporate owner of a rotating crane on a building project where he had suffered chest and shoulder injuries. Eight months prior to commencing such action, he had been formally awarded workmen's compensation pursuant to a disability claim filed against his own employer, the contractor who had hired him to work on the site. At the time of the injury, the District of Columbia workers' compensation statute incorporated by reference the provisions of the Longshoremen's and Harbor Workers' Compensation Act of 1927, as amended, 33 U.S.C. § 901 et seq., one of which, Section 33(b),¹ allowed a disability claimant, even after accepting workmens' compensation, to sue a person other than his employer within six months after the award. If he failed to do so, his right of action under this subsection was assigned to his employer.

In the instant case, as appellant had let the six-month deadline elapse before beginning his action, the trial court granted a motion to dismiss, observing that in Rodriguez v. Compass Shipping Co., 451 U.S. 596, 101 S.Ct. 1945, 68 L.Ed.2d 472 (1981), it was established that the running of the six-month period barred any suits not initiated by the employer or his subrogee.² Citing Rodriguez, we reached the same conclusion in two similar cases, Dodson v. Washington Automotive Co., 461 A.2d 1020 (D.C. 1983) and Milligan v. Brian Construction Development Co., 485 A.2d 593 (D.C. 1984). We are now urged to vacate the order of the trial court and remand the case for trial on the grounds that (1) Rodriguez is not controlling with respect to litigation commenced before the release of that opinion, and (2) in any event, a Congressional amendment to the Longshore statute (which became law during the pendency of this appeal) has breathed new life into the dismissed action. Deeming neither of the grounds urged for reversal as persuasive, we affirm.

I

In developing his first ground, appellant asserts that the motions court in this case should have deferred to Potomac Electric Power Co. v. Wynn, 120 U.S.App.D.C. 13, 343 F.2d 295 (1964). He points out that this decision of the United States Court of Appeals for this circuit was not specifically disapproved by the Supreme Court until it handed down its Rodriguez opinion in 1981, more than a year after appellant had begun his action in the Superior Court. In the Wynn case, the plaintiff waited for sixteen months after being awarded compensation benefits before filing an amended complaint against PEPCO. The appellate court affirmed the denial of a motion to dismiss. It recognized that after the six-month period had run, the right to recover the compensation award was assigned to the employer who had paid it, but nevertheless that if such assignee then failed to exercise such right — for any reason — the injured employee was not precluded from suing.

In arriving at this conclusion — seemingly at odds with the actual wording of the statutory language interpreted — the court cited Czaplicki v. The Hoegh Silvercloud, 351 U.S. 525, 76 S.Ct. 946, 100 L.Ed. 1387 (1956), a case which antedated the 1959 amendments to Section 33.³ In Czaplicki, the petitioner's rights of action against third parties were assigned by the act to his employer after he accepted compensation under an award. The employer's insurer, Travelers Insurance Company, was in turn subrogated to those rights. Travelers, however, was also the insurer of one of the third parties subject to suit. Thus, facing additional liability if such right of action was successfully asserted, it had no reason to bring suit. The Supreme Court held that where the assignee's interests are in conflict with those of the employee, the latter had a cause of action against a negligent third party, despite the prior assignment.

But by holding that an employee can bring suit against a third party whenever the employer-assignee fails to do so, the Wynn decision went considerably beyond Czaplicki. Professor Larson described Wynn as the "most extreme extension" of Czaplicki.⁴ It also seems that the Wynn opinion missed the point of the 1959 amendment to Section 33, which was to protect employees in Czaplicki situations by affording them a right to sue independently for a six-month period.

Appellant's position, however, is that irrespective of whether or not Wynn was properly decided, it was still the law of this jurisdiction when he commenced his action, for under the policy of this court enunciated in M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971), decisions of the United States Court of Appeals for this circuit rendered prior to February 1, 1971, "like the decisions of this court, constitute the case law of the District of Columbia."⁵ From this premise, he argues that the dismissal of his action on the authority of Rodriguez gave retroactive impact to that decision in circumstances which the Supreme Court itself had deemed unjust. He distinguishes our holding in Dodson and Milligan, supra, which also treated Rodriguez as controlling, on the ground that the issue of retroactivity was not specifically addressed in those opinions — as it had not been raised by the unsuccessful plaintiffs.

The problem of drawing a line between the kind of appellate decisions which should be deemed purely prospective, rather than retroactive in their effect, has been considered in several cases by the Supreme Court in recent years. The one upon which appellant primarily relies is Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). There the court remarked that a threshold requirement for depriving a decision of retroactive effect is that such decision "must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed." Id. at 106, 92 S.Ct. at 355 (citations omitted). That factor alone is not conclusive for the court also stressed that inquiry should be made into the history and the purpose of the new rule of decision and "`whether retrospective operation will further or retard its operation,'" id. at 106-07, 92 S.Ct. 355 (quoting Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 608 (1965)), and whether inequity would result from retroactivity.

The plaintiff in Chevron was injured while working on an offshore drilling rig close to the Louisiana coast, but did not file suit against Chevron until two years after the accident.⁶ During pretrial discovery, the Supreme Court published Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969), in which overruling a long line of federal decisions, it held that under the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq. (1982), state law, rather than admiralty law, is applicable to actions based on personal injuries occurring on offshore structures. On the authority of that holding, the federal district court where the action was pending then held that Louisiana's one-year statute of limitations barred respondent's suit, but was reversed by the Court of Appeals for the Fifth Circuit.

In agreeing that Rodrigue should not have been applied retroactively, the Supreme Court emphasized that in addition to being a case of first impression in that court, Rodrigue overruled decisions clearly establishing "that admiralty law, including the doctrine of lathes, applies through the Lands Act." Chevron, supra, 404 U.S. at 107, 92 S.Ct. at 355 (citations omitted). Hence, it could not "be assumed that . . . [plaintiff] did or could foresee that this consistent interpretation of the Lands Act would be overturned." His reliance on the old law, therefore, was well-founded and consequently the dismissal of his action for untimeliness "on the basis of superseding legal doctrine . . . quite unforeseeable" was reversible error. Id. at 108, 92 S.Ct. at 356.

In a subsequent opinion, United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), the Supreme Court undertook an extended review and analysis of the factors justifying the non-retroactive application of judicial opinions. It concluded that when the court has declared a rule of criminal procedure to be "a clear break with the past," it has almost invariably found "such a `newly minted principle' non-retroactive." Id. at 549, 102 S.Ct. at 2586 (citation omitted). In a footnote which cited Chevron, supra, as an example, the court observed that in the context of a civil case, the "clear break principle" has usually been stated as the threshold test. Johnson, supra, 457 U.S. at 550 n. 12, 102 S.Ct. at 2587 n. 12. We drew heavily upon these observations in Brodis v. United States, 468 A.2d 1335, 1337 (D.C. 1983), in refusing to set aside a conviction in a case tried prior to a novel holding of this court overruling a long standing procedural practice.

Accordingly, the issue before us turns on the question of whether the...