Holmes v. Shell Offshore, Incorporated

• Decision Date: 31 March 2003
• Docket Number: BRB 02-0499
• Parties: TANYA HOLMES (minor child of RONALD HOLMES, deceased), Claimant-Petitioner v. SHELL OFFSHORE, INCORPORATED, Self-Insured Employer-Respondent
• Court: Longshore Complaints Court of Appeals

TANYA HOLMES (minor child of RONALD HOLMES deceased), Claimant-Petitioner v. SHELL OFFSHORE, INCORPORATED, Self-Insured Employer-Respondent

BRB No. 02-0499

March 31, 2003

Appeal of the Decision and Order Granting Employer's Motion to Dismiss and the Decision and Order Denying Claimant's Motion for Reconsideration of C. Richard Avery Administrative Law Judge, United States Department of Labor.

Robert L. Hackett, New Orleans, Louisiana, for claimant.

Jeffrey I. Mandel (Juge, Napolitano, Guilbeau, Ruli &amp Frieman), Metairie, Louisiana, for self-insured employer.

Before: SMITH, HALL and GABAUER, Administrative Appeals Judges.

DECISION and ORDER

PER CURIAM:

Claimant appeals the Decision and Order Granting Employer's Motion to Dismiss and the Decision and Order Denying Claimant's Motion for Reconsideration (2002-LHC-271) of Administrative Law Judge C. Richard Avery rendered on a claim filed pursuant to the provisions of the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 et seq. (the Act). We must affirm the administrative law judge's findings of fact and conclusions of law if they are supported by substantial evidence, are rational, and are in accordance with law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates Inc., 380 U.S. 359 (1965).

Decedent was a Ballast Control Operator on one of employer's offshore oil platforms. According to an affidavit, on January 16, 1999, he told his supervisor of his separation from his wife, and he asked for leave to return home to resolve some personal problems. He was not sleeping well due to these problems and felt he was a safety risk. When decedent arrived home on January 17, 1999, he committed suicide.

Decedent's widow filed a claim for death benefits under the Act. In her deposition, she testified that decedent had been acting strangely at the time of their December 1998 argument, the incident precipitating the separation, but that she felt the separation was only temporary. She also testified that a suicide note was found in decedent's jacket pocket, demonstrating to her that the death was not accidental. Employer filed a motion for summary decision on the widow's claim, arguing that the claim was barred by Section 3(c) of the Act. 33 U.S.C. §903(c).

The administrative law judge considered the evidence attached to employer's motion and found that decedent did not suffer any work-related injury or illness prior to taking his own life. Consequently, he found that decedent's widow failed to invoke the Section 20(a) presumption, 33 U.S.C. §920(a), and, as decedent willfully intended to take his own life, Section 3(c) barred the claim for compensation. Finding no genuine issue of disputed facts, the administrative law judge granted the motion for summary decision and dismissed the claim. Decision and Order I. Due to the widow's failure to respond to employer's motion for summary decision and to the administrative law judge's motion to show cause, despite the verification of service, the administrative law judge deemed such failure as a waiver of rights, and denied her motion for reconsideration. Decedent's widow did not appeal these decisions.

One year later, on September 21, 2001, decedent's daughter by his first marriage (claimant), stepdaughter of decedent's widow, filed a claim for death benefits. Employer filed a motion to dismiss based on the principle of collateral estoppel. The same administrative law judge decided the case. He found: "The same forum, the same Employer and same attorneys are involved here that were involved in the widow's claim. The only addition to this claim is the child, who apparently has now reached majority, and who stands in privity with her stepmother, Janice Holmes, as far as entitlement under the Act is concerned." Decision and Order II at 2. Accordingly, he dismissed the claim because the final judgment of the prior claim determined that the death was not compensable. The administrative law judge summarily denied claimant's motion for reconsideration.

Claimant appeals the dismissal of her claim. She argues that collateral estoppel is not applicable and that the dismissal of her claim is in error as it confines her to the facts presented to the administrative law judge in the prior case and presumes she is in privity with her stepmother. She contends she is not in privity with her stepmother, she is entitled to present facts to the administrative law judge which would support her own claim, and there is no law supporting employer's argument that privity depends on the "source of benefits." Claimant, therefore, requests reversal of the finding that her claim is precluded because of a final judgment on the prior claim and remand for a hearing on the merits. Employer argues that the administrative law judge correctly applied collateral estoppel and dismissed claimant's claim. It asserts that the payment of death benefits under the Act is a function of the death and this creates the privity between claimant and decedent's widow. As the event giving rise to the claim was found to be non-compensable and that conclusion became final, employer asserts that payment of death benefits is precluded.

This case arises in Louisiana within the jurisdiction of the United States Court of Appeals for the Fifth Circuit. Under federal law, res judicata can only apply if: 1) the parties in the current action are the same or are in privity with the parties in the prior action; 2) the court that rendered the prior judgment was a court of competent jurisdiction; 3) the prior action must have terminated with a final judgment on the merits; and 4) the same claim or cause of action must be involved in both actions. Gulf Island-IV, Inc. v. Blue Streak-Gulf Is. Ops., 24 F.3d 743 (5^th Cir. 1994); Meza v. General Battery Corp., 908 F.2d 1262 (5^th Cir. 1990); Sider v. Valley Lines, 857 F.2d 1043 (5^th Cir. 1988); Ortiz v. Todd Shipyards Corp., 25 BRBS 228 (1991). The concept of res judicata includes both claim preclusion and issue preclusion, also called collateral estoppel. Thomas v. Janzen, 800 So.2d 81 (La.App.2 2001); 50 C.J.S. Judgments §779. For collateral estoppel to bar a party from re-litigating an issue, the issue at stake must be identical to the one alleged in a prior litigation, the issue must actually have been litigated, the determination of that issue must have been a critical and necessary part of the judgment of the earlier action, and the parties or their privies must have had a full and fair opportunity to litigate the issues. Blonder-Tongue Laboratories, Inc. v. Univ. of Illinois Foundation, 402 U.S. 313 (1971); Taylor v. Plant Shipyards Corp., 30 BRBS 90 (1996); Ortiz, 25 BRBS 228; Alexander v. Island Creek Coal Co., 12 BLR 1-44 (1988). In the case currently before the Board, it is clear that the claims for benefits in both the current and prior cases are based on the same death and rely on the identical issue of whether the death was compensable. Both cases proceeded through the same and proper administrative course and, thus, are held to the same burden of proof, see Bath Iron Works Corp. v. Director, OWCP [Acord], 125 F.3d 18, 31 BRBS 109(CRT) (1^st Cir. 1997), and the prior adjudication reached a final judgment. The only disputed question is novel to the Board: does claimant stand in privity with her stepmother, decedent's widow? Because we hold she does not, collateral estoppel and res judicata do not apply to defeat her claim.

The Act does not define privity; therefore, we must look elsewhere to resolve the question before us. Black's Law Dictionary (5^th ed. 1979) states:

In its broadest sense, "privity" is defined as mutual or successive relationships to the same right of property, or such an identification of interest of one person with another as to represent the same legal right.

"Privity defines the legal conclusion that the relationship between a party and a nonparty is sufficiently close to mandate the application of the doctrine of res judicata." 50 C.J.S. Judgments §830. According to Fifth Circuit and Louisiana law, "privity" exists only in three narrowly-defined circumstances: 1) where the current party is the successor in interest to a prior party's interest in property; 2) where the current party controlled the prior litigation; or 3) where the current party's interests were adequately represented by a party in the prior suit so as to consider the prior party the "virtual representative" of the current party because their interests are so closely aligned. Meza, 908 F.2d at 1266; Benson & Ford, Inc. v. Wanda Petroleum Co., 833 F.2d 1172 (5^th Cir. 1987); Aerojet-General Corp. v. Askew, 511 F.2d 710 (5^th Cir.), appeal dismissed, 423 U.S. 908 (1975); Thomas, 800 So.2d at 89; Hudson v. City of Bossier, 766 So.2d 738 (La.App.2 2000), writ denied, 775 So.2d 450 (La. 2000). Of the three concepts of privity, only the third, virtual representation, would be applicable in the instant case. However, to be "closely aligned, " so as to be one's virtual representative, it is not enough to merely show that "the party and the nonparty have common or parallel interests in the factual and legal issues presented in the respective actions[, ]" Thomas, 800 So.2d at 89, or that they both used the same attorney, Benson & Ford, 833 F.2d at 1175; Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860, 864 (5^th Cir. 1985). Rather, in the Fifth Circuit, virtual representation requires "an express or implied legal relationship in which parties to the first suit are accountable to non-parties who file a subsequent suit raising identical issues." Meza, 908 F.2d at 1272 (quoting Benson & Ford, 833 F.2d at 1175).

Virtual representation is very narrowly construed in the state courts, but it has been applied in certain...