Keller v. Dravo Corporation

• Decision Date: 29 June 1971
• Docket Number: No. 30255.,30255.
• Citation: 441 F.2d 1239
• Parties: Joe KELLER, Plaintiff-Appellant, v. DRAVO CORPORATION et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

441 F.2d 1239 (1971)

Joe KELLER, Plaintiff-Appellant, v. DRAVO CORPORATION et al., Defendants-Appellees.

No. 30255.

United States Court of Appeals, Fifth Circuit.

April 28, 1971.

Rehearing Denied June 29, 1971.

William P. Rutledge, Domengeaux, Wright & Bienvenu, Lafayette, La., for plaintiff-appellant.

John G. Torian, II, Davidson, Meaux, Onebane & Donohoe, Lafayette, La., Wilson C. Krebs, Patterson, La., for defendants-appellees.

Before GODBOLD, CLARK and INGRAHAM, Circuit Judges.

CLARK, Circuit Judge:

This appeal challenges summary judgments in favor of a shipyard, its employees and its insurance carriers on the complaint of an injured workman who has received all benefits to which he is currently entitled under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. (1970).¹ Assigned as errors were the following actions of the lower court: Its refusal to declare the exclusive remedy proviso of the Compensation Act unconstitutional; the determination that the insurers may partake of this insulation from liability; the holding that the moored, floating dry dock which contained the vessel on which the injury occurred was not itself a vessel; and, the decision that the vessel on which the accident occurred could owe no warranty of seaworthiness because it was not in navigation at the time of injury. We affirm on all but the issue of insurer liability. We expressly pretermit any holding on that issue and remand that part of the action with directions to require a fuller factual development.

The pleadings and affidavits reflect this factual background. On August 19, 1968, Plaintiff-appellant, Joe Keller, a machinist employed by the defendant J. Ray McDermott & Co., Inc. (McDermott) was injured while removing a motor from a vessel designated as MIXER BOAT NO. 4, owned by another defendant, Dravo Corporation (Dravo). At this time, the vessel was undergoing extensive repairs on a floating dry dock in McDermott's Amelia, Louisiana marine repair facility, having recently been raised from a watery berth at the bottom of a Louisiana bayou following its sinking. Keller began to receive the compensation benefits due under the provisions of the Longshoremen's and Harbor Workers' Compensation Act and subsequently instituted this action.

As originally filed, the complaint set out a cause of action solely against Dravo for its alleged negligence and the unseaworthiness of MIXER BOAT NO. 4. The original complaint was amended to include McDermott; McDermott's President, Vice President, Amelia General Manager, General Superintendent and Safety Man; and, The Travelers Insurance Company and The Travelers Indemnity Company (collectively, Travelers), the insurers of McDermott and the individual defendants. The amended complaint predicated the liability of McDermott upon allegations that the unseaworthiness of the floating dry dock was a proximate cause of Keller's injury and, additionally because McDermott then exercised complete control and possession of the unseaworthy MIXER BOAT NO. 4. Liability as to the individual McDermott employees was hinged upon numerous acts and neglects which, in essense, constituted negligent failure to require McDermott to provide Keller with a safe place to work. Finally, as to Travelers, it was asserted: that the insurance companies had represented to McDermott and its officers that Travelers would inspect for unsafe working conditions and procedures and warn McDermott thereof; that, with Travelers knowledge, McDermott and the individual defendants relied upon such representation, yet Travelers negligently failed to make such inspections; and that this negligence on the part of Travelers proximately caused Keller's injuries.

Pursuant to Fed.R.Civ.P. 56, McDermott, McDermott's employees, and Travelers made motions for summary judgment which were granted. Summary judgment in favor of McDermott rested on two foundations. First, the floating dry dock was not a vessel; resultantly, no claim of unseaworthiness could arise. Second, MIXER BOAT NO. 4 could not be unseaworthy since it was a vessel out of navigation undergoing major repairs. The District Judge granted the motion of the employees of McDermott, on the ground that 33 U.S. C.A. § 933(i) provided that an injured employee subject to the Longshoremen's and Harbor Workers' Compensation Act shall have no right of action against an officer or employee of his employer. Travelers motion, which was based solely on the pleadings without affidavit or other factual fleshing, was granted for two reasons: first, Travelers owed no duty to Keller, since the insurance coverage was issued in favor of McDermott; and, second, the insurers, just as their insureds — both corporate or individual — would have immunity under the above provision of the Compensation Act.

I. THE CONSTITUTIONALITY OF 33 U.S.C.A. § 933(i)

Keller contends that 33 U.S.C.A. § 933(i) will not pass constitutional muster since it makes management immune from damage suits for its maritime torts against repair yard workers. As ground for this contention, it is asserted that this prohibition is completely devoid of any rational basis and denies the injured employee a property right without due process of law in violation of the Fifth and Fourteenth Amendments. More succinctly stated, no quid pro quo existed so as to make the compensation scheme constitutional. This section provides:

The right to compensation or benefits under this chapter shall be the exclusive remedy to an employee when he is injured, or to his eligible survivors or legal representatives if he is killed, by the negligence or wrong of any other person or persons in the same employ: Provided, That this provision shall not affect the liability of a person other than an officer or employee of the employer.

We reject Keller's contention that he was unconstitutionally deprived of a property right — the right to sue his employer and fellow-servants. Many years ago, when called upon to consider whether the Federal Employer's Liability Act superseded certain common law rights, the Supreme Court declared:

A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will * * * of the legislature, unless prevented by constitutional limitations. Mondou v. New York, New Haven & Hartford Railroad Co., 223 U.S. 1, 32 S.Ct. 169, 175, 56 L.Ed. 327 (1912).

This principle was explicated by later cases. While conceding that one can have no vested interest in any rule of common law, these cases emphasized that a right created under such a rule which has been perfected could not be taken away without being violative of the Fifth and Fourteenth Amendments. Coombes v. Getz, 285 U.S. 434, 52 S.Ct. 435, 76 L.Ed. 866 (1932). On the other hand, one cannot be heard to question the sufficiency of due process if the rule of law, which merely held the potential to create a property right, was changed before any right vested. This latter situation is precisely what obtains in the instant case.

Keller's right to sue his employer, its officers and his fellow-employees had not accrued and become vested before it was abolished by the limitation of § 933(i).

The abolition of non-vested rights is especially innocuous if, as here, one remedy is substituted for another. New York Central Railroad Co. v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L. Ed. 667 (1917). The limitation contained in § 933(i) is in no way violative of the Fifth and Fourteenth Amendments. Since the subsection granting immunity is constitutional, the trial judge was correct in granting a motion of summary judgment in favor of the individual McDermott employees.

II. THE CLAIM AGAINST THE INSURER

On the bare basis of two sentences in an amended complaint² which presently stand undenied and unamplified by affidavit, deposition or any other fact generating process, this court is pressed to rule upon a legal issue of broad policy-making significance to insurance funding and safety inspection procedures under the Longshoremen's and Harbor Workers' Compensation Act. So far as is disclosed by the research of the parties and the independent research of this court, the precise question in issue has never been determined.

Keller bases his claim principally upon the recent holding of this circuit in Hill v. U. S. F. & G. Co., 428 F.2d 112 (1970). Hill, while helpful in analysis, is not controlling. It concerned suits by hotel guests against an insurer, based upon alleged negligent failure of the insurer to carry out representations to the hotel company that it would take certain safety measures for guest security. No exclusive remedy clause such as that embodied in § 933(i), was faced in that decision.

The decisional law which has considered insurer liability for failure to make inspections in workmen's compensation act situations, has been widespread and has produced differing results. Although the majority of decisions have allowed the insurer to partake of the employer's immunity,³ a significant number of cases have held that the insurer stood in no different position from any other negligent third party.⁴ There is authority to suggest a basis for reconciling these different results, which would analyze the statute to find whether an insurer was expressly categorized as an employer who partook of that act's exclusive remedy protection. See West v. Atlas Chemical Co., 264 F.Supp. 697 (E.D.Mo.1966).

In the case at bar, we simply decline to resolve this problem on the basis of conclusory pleading allegations which may prove to be nothing more substantial than lawyer talk. For example, in Evans v. Liberty Mutual Ins. Co., 398 F.2d 665 (3d Cir. 1968), a case cited by the insurers here, our sister circuit...