DiGiovanni v. Traylor Bros., Inc.

• Decision Date: 09 June 1994
• Docket Number: C.A. No. 89-0369L.
• Citation: DiGiovanni v. Traylor Bros., Inc., 855 F.Supp. 37, 1995 AMC 86 (D. R.I. 1994)
• Parties: Rocco P. DiGIOVANNI, Jr., Plaintiff, v. TRAYLOR BROTHERS, INC., Defendant.
• Court: U.S. District Court — District of Rhode Island

855 F. Supp. 37

1995 AMC 86

Rocco P. DiGIOVANNI, Jr., Plaintiff, v. TRAYLOR BROTHERS, INC., Defendant.

C.A. No. 89-0369L.

United States District Court, D. Rhode Island.

June 9, 1994.

Merrill J. Freidemann, Lovett, Schefrin, Gallogly & Harnett, Providence, RI, David B. Kaplan, Boston, MA, for plaintiff.

S. Michael Levin, Edwards & Angell, Providence, RI, Andrew Rothschild, Eric D. Paulsrud, Lewis, Rice and Fingersh, St. Louis, MO, for defendant.

MEMORANDUM AND ORDER

LAGUEUX, Chief Judge.

This matter is before the Court for decision following a bench trial. Plaintiff seeks recovery under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901, for injuries he received while working for defendant on its barge used in the construction of the Jamestown Bridge.

FACTUAL SITUATION

Defendant is an Indiana corporation and had a place of business in Saunderstown, Rhode Island in mid 1988, when it took over the construction of the Jamestown Bridge from the prior contractor. Plaintiff was an employee of defendant who was hired as a carpenter/piledriver. Plaintiff and his colleagues were assigned the task of constructing coffer dams in the Narragansett Bay. A coffer dam is a metal enclosure built in the water. After construction of the coffer dam, water is pumped out so concrete can be poured in for building structures, such as bridge piers. In order to build a coffer dam, the pile driving crew sinks metal plates, or "piles", into the ground. In this case, these piles were driven with a vibratory hammer. The vibratory hammer is a ten ton hydraulic device which is suspended over the piles from a crane. The hammer is susceptible to wind currents when it is dangling from the crane. In order to counter the effects of the wind, two ropes are affixed to the hammer and used to steady it. These ropes are called "tag lines" and the individuals using them are known as "tag men."

The work on the coffer dams for the Jamestown Bridge project was performed from barges on the Bay. Plaintiff was part of a work crew that utilized a barge named the Betty F which was owned by defendant. The Betty F was moored on the Bay during the construction phase of the project but was maneuvered about on the water at times in order to be positioned for construction of the coffer dams and bridge piers. On its deck were the crane and the hammer plus various equipment and two small shacks. A supply barge was used to bring materials and equipment from shore and was usually moored alongside the Betty F during piledriving activity. On the deck of the supply barge were the steel piles used to build the coffer dams as well as the power pack for the vibratory hammer. The power pack was connected to the hammer via long hoses. The power pack pumped hydraulic fluid through these hoses in order to drive the hammer.

For at least a week before the accident which is the subject of this lawsuit, hydraulic fluid had been leaking from the power pack onto the metal deck of the supply barge. This hazard was open and known by all of the workers who testified. Crew members first used a chemical absorbent known as "Speedy Dry" and later cat-box litter to absorb the fluid from the deck. They also attempted to slow the leaks by tying rags around the fittings connecting the hoses to the vibratory hammer. Several of the workers on the site complained about the slippery conditions on the barge's deck to the foreman and the union steward. Some of the workers also claimed to have told defendant's general superintendent, Ed Brush, about this situation. Mr. Brush, however, denied any knowledge of the complaints or the hazard. Other than the remedial measures taken by the workers on the supply barge, no repairs were made. Consequently, the deck of the supply barge remained very slippery for the week or so leading up to the accident.

On September 30, 1988, plaintiff was working on the Jamestown Bridge project as a tag man. He was positioned on the supply barge with his tag line. As a result of the crane's jerky motions, a great deal of tension was put on his tag line. As plaintiff attempted to steady the hammer, he walked down the length of the supply barge. When walking across the portion of the deck covered with hydraulic fluid, plaintiff slipped, lost his balance, and was dragged by his tag line until he hit the power pack. Plaintiff sustained back injuries in this incident which he claims to be permanent. Defendant received workers' compensation from defendant or its insurer for the injury and continued to receive those benefits as of the date of the trial.

In addition, plaintiff filed suit against defendant under the Jones Act and the LHWCA. The case originally went to trial before Judge Torres sitting with a jury. The jury found for the plaintiff on the Jones Act claim and awarded him money damages. Since the Jones Act and the LHWCA provide mutually exclusive remedies, the jury, in accordance with the instructions of the trial judge, did not reach the LHWCA claim. That verdict was reversed by the full panel of the First Circuit, which determined that plaintiff's claim did not fall within the Jones Act. DiGiovanni v. Traylor Bros., 959 F.2d 1119, 1123-24 (1st Cir.1992) (en banc) cert. denied ___ U.S. ___, 113 S.Ct. 87, 121 L.Ed.2d 50 (1992). The case was ultimately remanded to this Court for trial on the LHWCA claim. After a hearing on February 10, 1993, the Court determined that the case was now a non-jury matter. Later, defendant made a motion for summary judgment which was denied on September 8, 1993. DiGiovanni v. Traylor Bros., 830 F.Supp. 106 (D.R.I.1993). The case was retried before the Court sitting without a jury commencing on October 20, 1993 for three days. The matter was then taken under advisement. It is now in order for decision.

EMPLOYERS AND VESSEL OWNERS

In analyzing whether defendant is liable in this case, the Court must take care to differentiate between an employer and a vessel owner. The LHWCA was enacted in 1927 to provide compensation for maritime workers injured on the job. See Director, Office of Workers' Compensation Programs v. Perini N. River Assocs., 459 U.S. 297, 306, 103 S.Ct. 634, 641, 74 L.Ed.2d 465 (1983). The Act filled a gap left by several Supreme Court decisions limiting the jurisdiction of state workers' compensation laws. See id. at 306-7, 103 S.Ct. at 641-43. The Act is similar to state workers' compensation schemes in that common law tort liability is replaced by a no-fault compensation system for workers injured in the course of employment. Compare 33 U.S.C. § 904-5 with R.I.Gen. Laws § 28-29-20. The statute contains a limited exception, however, which allows an individual covered by the Act, who is injured by the negligence of a vessel, to sue that vessel.¹Id. § 905(b). It is to be noted that it can be a great waste of time and effort for an injured worker receiving workers' compensation benefits to sue the vessel owner for negligence. By winning that case he may gain nothing. Before he receives any money from the judgment, the employer, or its compensation carrier, must be reimbursed for any benefits received or any future benefits to be received. On top of that, the employee must cover his litigation expenses. 33 U.S.C. § 933; Jones & Laughlin Steel Corp. v. Pfeifer 462 U.S. 523, 530 n. 5, 103 S.Ct. 2541, 2547 n. 5, 76 L.Ed.2d 768 (1983) ("The longshoreman cannot receive a double recovery, because the stevedore, by paying him statutory compensation, acquires a lien in that amount against any recovery the longshoreman may obtain from the Vessel."); Peters v. North River Ins. Corp., 764 F.2d 306, 311-12 (5th Cir.1985); Johnson v. Sioux City & New Orleans Barge Lines, Inc., 629 F.2d 1244, 1245-46 (7th Cir.1980).

In the present case, defendant was both plaintiff's employer and the owner of the vessel upon which he was injured. The Supreme Court has noted that even when the employer is the vessel owner, the Act still affords a remedy. Pfeifer 462 U.S. at 530, 103 S.Ct. at 2547 ("A separate action is authorized against the vessel even when there is no independent stevedore and the longshoreman is employed directly by the vessel owner.²"). The LHWCA immunizes defendant from tort liability in its capacity as the employing contractor. 33 U.S.C. § 905(a). In its capacity as vessel owner, defendant may be sued for the negligence of the vessel only. 33 U.S.C. § 905(b). The Supreme Court stated in Pfeifer, "A vessel owner acting as its own stevedore is liable only for negligence in its `owner' capacity, not for negligence in its `stevedore' capacity." 462 U.S. at 531 n. 6, 103 S.Ct. at 2547 n. 6. This Court, therefore, must treat the defendant as two separate and distinct entities: defendant as the owner of the Betty F and the supply barge and defendant as the contractor who hired plaintiff to work on the Jamestown Bridge project.

This legal distinction may seem inequitable in that it allows a vessel owner to be a negligent employer and escape liability except for workers' compensation benefits. However, this apparent inequity may be quickly dismissed when it is remembered that immunity is the rule while vessel owner liability is the exception. Levene v. Pintail Enterprises, 943 F.2d 528, 531 (5th Cir.1991). To merge the two capacities, permitting liability of the employer to be visited upon the vessel owner, would allow the exception to swallow the rule in clear violation of the intent of Congress. See Castorina v. Lykes Bros. S.S. Co., 758 F.2d 1025, 1033 (5th Cir. 1985).

VESSEL NEGLIGENCE

The 1972 amendments to the LHWCA replaced liability based on unseaworthiness with liability based on vessel negligence. The amendments, however, provided no guidance as to the extent of this new vessel negligence action. Consequently, courts were left to devise the standards. A split in the circuits developed that was finally resolved in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 162 n. 9, 101 S.Ct....