Milligan v. Brian Const. Development Co., 83-1264.

• Decision Date: 16 October 1984
• Docket Number: No. 83-1264.,83-1264.
• Citation: 485 A.2d 593
• Parties: Bruce E. MILLIGAN, Appellant, v. BRIAN CONSTRUCTION DEVELOPMENT COMPANY, et al., Appellees.
• Court: D.C. Court of Appeals

Page 593

485 A.2d 593

Bruce E. MILLIGAN, Appellant, v. BRIAN CONSTRUCTION DEVELOPMENT COMPANY, et al., Appellees.

No. 83-1264.

District of Columbia Court of Appeals.

Argued August 29, 1984.

Decided October 16, 1984.

Michelle A. Parfitt, Washington, D.C., for appellant.

Terrence O'Connell, Washington, D.C., for appellee Brian Construction Development Company. Edward J. Gorman, Jr., Washington, D.C., was on the brief for appellee Brian Construction Development Company.

Keith M. Bonner, Washington, D.C., for appellee Parkland Easts Apartments Association.

Before MACK and TERRY, Associate Judges, and REILLY, Chief Judge, Retired.

MACK, Associate Judge:

Appellant, a carpenter employed by a decorating company, sustained a work related injury on February 7, 1980. As a result of the injury, he was awarded workers' compensation benefits on March 26, 1981. Thereafter, on September 25, 1981, appellant filed an action against a third party, Baker Roofing Company, charging it with negligence. Some sixteen months later, on February 1, 1983, he filed a Motion to Amend the Complaint to include as other third party defendant the two appellees.

The issue at the heart of this appeal is whether the appellant's subsequent filing against the appellees, almost two years after the award of workers' compensation benefits, is barred by section 933(b) of the Longshoremen's and Harbor Workers' Act, 33 U.S.C. §§ 901-950 (as incorporated by D.C.Code § 36-501 (1973) (the Longshoremen's Act)).¹ The trial court, concluding that the claim was barred as not having been filed within six months after appellant's receipt of workers' compensation, granted summary judgment to appellees. We affirm.

In this court, appellant does not dispute that the language of section 933 of the Act requires that an injured worker who has accepted compensation commence any action against a third person within six months after the award. He argues, rather, that appellees' reliance on Dodson v. Washington Automotive Co., 461 A.2d 1020 (D.C. 1983), as being conclusive and dispositive of his claim, is misleading in view of the instant facts. He argues that the fact that he filed a claim against Baker Roofing Company in September of 1981 preserves his claim against appellees. In other words he contends that section 933 must be read to mean that the right to file against any third party at any time inures to an employee once he files against one third party during the six month period after the receipt of benefits. We cannot agree with such a broad reading of the statute.

In Dodson, supra, in concluding that the appellant's third party action, filed two years after an award of compensation, was barred by the plain language of section 933, we noted with approval language from Rodriquez v. Compass Shipping Co., 451 U.S. 596, 604, 101 S.Ct. 1945, 1951, 68 L.Ed.2d 472 (1981) (quoting Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980)):

"[A]bsent a clearly expressed legislative intent to the contrary [the statutory] language must ordinarily be regarded as conclusive."

Applied to the facts of the instant case, the language of section 933 is no less conclusive. Subsection (a) provides that an injured employee need not make an election as between receipt of compensation and recovery of damages against a third person, and subsection (b) provides that the award of compensation to the employee operates to vest all recovery rights against a third person in the employer, unless the employee elects to move against that person within six months after such award. Appellant's claim, that a timely filed claim against one third person defeats the employer's assignment rights as to other third persons, ignores the plain meaning of the language that the total assignment is triggered by the election to receive compensation and becomes binding if the employee does not elect to file a cause of action within six months.² Moreover, the interpretation advanced by appellant would open the door to confusion and multiple litigation, as well as the potential for double compensation or liability. It would defeat the intent of Congress that the Act be construed so as to equally balance the rights of the employees and employers. See S.REP. No. 428, 86th Cong., 1st Sess. (1959) reprinted in 1959 U.S.CODE CONG. & AD.NEWS 2134.

The legislative history of the Act in this regard is clear. In 1927, when the Act was passed, an employee could select one of two options: he could accept workers' compensation benefits or he could sue a third party for negligence. He could not do both. In 1959, the Congress amended the Act so that an injured employee could exercise both options. In so doing, the Congress conferred upon injured employees a theretofore unknown benefit. The only limiting proviso was that the benefit had to be exercised within six months. The Senate report reads in part:

PURPOSE OF THE BILL

The bill as amended by the committee would revise section 33 of the act so as to permit an employee to bring a third-party liability suit without forfeiting his right to compensation under the act. The principle underlying the modification of the law made by this bill, is embodied in most modern State workmen's compensation laws. The committee believes that in theory and practice that is a sound approach to what has been a difficult problem. As embodied in the committee amendment, the principle would be applied with due recognition of the equities and rights of all who are involved.

Although an employee could receive compensation under the act and for the same injury recover damages in a third-party suit, he would not be entitled to double compensation. The bill, as amended, provides that an employer must be reimbursed for any compensation paid to the employee out of the net proceeds of the recovery. In the event that an employee does not elect to sue for damages within 6 months of the compensation award the employer is assigned the cause of action. In the event that the employer institutes proceedings and makes a recovery, the employee receives four-fifths of the amount...