Passman v. Companhia de Navegacao Maritima Netumar

• Decision Date: 09 July 1982
• Docket Number: Civ. A. No. 81-1120.
• Citation: 544 F. Supp. 451
• Parties: Warren PASSMAN v. COMPANHIA de NAVEGACAO MARITIMA NETUMAR and Northern Shipping Company and Midland Insurance Company.
• Court: U.S. District Court — Eastern District of Pennsylvania

544 F. Supp. 451

Warren PASSMAN v. COMPANHIA de NAVEGACAO MARITIMA NETUMAR and Northern Shipping Company and Midland Insurance Company.

Civ. A. No. 81-1120.

United States District Court, E. D. Pennsylvania.

July 9, 1982.

Charles Sovel, Freedman & Lorry, Philadelphia, Pa., for plaintiff.

Thomas S. Brown, Hecker, Maginnis, Rainer & Brown, Philadelphia, Pa., for defendants.

MEMORANDUM AND ORDER

DITTER, District Judge.

In this action brought pursuant to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. (LHWCA or "the act"), plaintiff seeks a declaratory judgment that his employer and his employer's workmen's compensation carrier are real parties in interest in a negligence claim he has brought against the owner of a ship upon which he was injured. Because such a holding is not warranted under Fed.R.Civ.P. 17(a), and would directly contravene the delicate balancing of interests embodied in the LHWCA, I must refuse plaintiff's request.

Plaintiff was employed as a longshoreman by the Northern Shipping Company ("Northern"). He was injured while working aboard the M. V. AMALIA, a vessel owned and operated by Companhia de Navegacao Maritima Netumar ("Companhia"). Plaintiff's medical expenses were paid by Northern and he received temporary total disability benefits from Midland Insurance Company ("Midland"), Northern's workmen's compensation carrier. Both Northern and Midland have asserted compensation liens against any recovery obtained by plaintiff from Companhia or any other party.

Plaintiff commenced this action against Companhia, Northern, and Midland. Count I of the complaint is directed solely against Companhia and asserts that plaintiff's injuries were caused by the shipowner's negligence. Count II seeks a declaratory judgment that to the extent of their respective compensation liens, Northern and Midland are real parties in interest in the action against Companhia and should be required to join the lawsuit as involuntary plaintiffs or, alternatively, that plaintiff should be permitted to pursue his claim against Companhia only for those damages in excess of the compensation liens. Northern and Midland have filed a motion to dismiss contending, inter alia,¹ that under the comprehensive statutory scheme established by the LHWCA they are not real parties in interest in plaintiff's negligence action and therefore cannot be added as involuntary plaintiffs.

In order properly to address plaintiff's contentions, it is necessary to examine in some detail the manner in which the LHWCA controls the conflicting interests of longshoremen, shipowners, and stevedores. Under 33 U.S.C. § 904, a stevedore is required to pay compensation to an injured longshoreman irrespective of fault. This obligation represents the stevedore's exclusive liability under the act, 33 U.S.C. § 905(a). A longshoreman is not required to elect between receiving compensation from his employer and commencing a negligence action against a third party, 33 U.S.C. § 933(a).² From the time he receives a compensation award, a longshoreman has six months to institute a personal injury action against a third-party tortfeasor, which is normally the shipowner. 33 U.S.C. § 933(b). If the longshoreman does not begin such an action within the required six-month period, his acceptance of the compensation award acts as an assignment to the stevedore of his right to recover damages from a third party. Id. If the stevedore pursues the assigned cause of action, it is entitled to retain the amount of compensation and benefits it has actually paid as well as expenses incurred in obtaining the recovery. Any excess recovery is apportioned between stevedore and longshoreman, the longshoreman receiving 80 per cent and the stevedore 20 per cent. 33 U.S.C. § 933(e). The passage of the six-month period serves as a complete bar to the longshoreman's right to bring an independent action regardless of whether the stevedore, as assignee, pursues the claim. Rodriguez v. Compass Shipping Co., Ltd., 451 U.S. 596, 101 S.Ct. 1945, 68 L.Ed.2d 472 (1981).

However, even when the longshoreman does timely commence a third-party-negligence action, the stevedore may assert a judicially created lien in the full amount of its compensation payments against any recovery.³ Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 269-70, 99 S.Ct. 2753, 2761, 61 L.Ed.2d 521 (1979); The Etna, 138 F.2d 37 (3d Cir. 1943). In Bloomer v. Liberty Mutual Insurance Co., 445 U.S. 74, 100 S.Ct. 925, 63 L.Ed.2d 215 (1980), the Supreme Court held that a stevedore is not required to bear pro rata the costs of a longshoreman's third-party action even though it obtains the full amount of its lien from the longshoreman's recovery. It is this holding which prompted plaintiff's declaratory judgment action in the instant case. He contends that the practical effect of Bloomer has been to encourage stevedores and their insurance carriers⁴ to make an injured longshoreman bear all costs and risks of third-party litigation and then recoup their lien interests "off the top" of any recovery. In plaintiff's words, this "has had the regrettable consequence of substantially interfering with the settlement process in third party litigation" because the lienholder, who need bear none of the expense or risk of pursuing the claim, often insists that a case be tried when it is in the best interests of the longshoreman to settle. See Plaintiff's Memorandum of Law at 10.

However true this assertion may be, it does not support plaintiff's contention that Northern and Midland are real parties in interest under Fed.R.Civ.P. 17, nor can it warrant the use of a procedural mechanism to circumvent the express provisions of the LHWCA. Rule 17 provides that "every action shall be prosecuted in the name of the real party in interest." The import of this requirement simply "is that the action must be brought by the person who, according to the governing substantive law, is entitled to enforce the right. Thus, the action will not necessarily be brought in the name of the person who ultimately will benefit from the recovery." 6 C. Wright and A. Miller, Federal Practice and Procedure § 1543, at 643-44 (1971) (footnotes omitted). See also Proctor v. Gissendaner, 579 F.2d 876, 880 (5th Cir. 1978). The respective rights of plaintiff, Northern, and Midland are set forth in 33 U.S.C. § 933 with subsection (b) playing "a central role in this comprehensive legislative scheme." Rodriguez v. Compass Shipping Co., Ltd., supra, 451 U.S. at 602, 101 S.Ct. at 1950. Under this provision, where the longshoreman's right of action against a third party has not been statutorily assigned to the stevedore, the longshoreman retains exclusive control of the litigation and is entitled to keep any recovery in excess of the stevedore's compensation lien and his own litigation costs. By contrast, where the statutory assignment has occurred, the stevedore obtains complete control of the third-party action with the longshoreman entitled to 80 percent of the excess recovery over the stevedore's compensation payments and costs. Thus, the dispositive consideration in determining who is entitled to pursue a third-party action under section 33(b) is whether there has been a statutory assignment of the right of action.

Here, there has been no such assignment.⁵ The right to commence and maintain this action belongs exclusively to plaintiff. While Northern and Midland will share in any recovery, they are not pursuing a substantive claim for relief against Companhia.⁶ Rather, their interest in this litigation is limited to the assertion of a judicially created lien against any recovery by the plaintiff. Hence, plaintiff and his employer "are not merely different parties with the same claim. They are different parties with different claims." Del Re v. Prudential Lines, Inc., 669 F.2d 93, 97 (2d Cir. 1982), petition for cert. filed, 50 U.S. L.W. 3998.20 (U.S. June 3, 1982) (No. 81-2315). Under the governing substantive law, Northern and Midland cannot properly be deemed real parties in interest in plaintiff's negligence action against Companhia.

This holding finds direct support in Joyner v. F & B Enterprises, Inc., 448 F.2d 1185 (D.C.Cir.1971). In Joyner, the plaintiff received workmen's compensation benefits from the American Motorists Insurance Company ("American") without benefit of a formal compensation award. He subsequently sued a third party which filed a motion to join American as a named plaintiff under Rule 17. In affirming the trial court's denial of the motion, the Court of Appeals emphasized that plaintiff and American were asserting different legal interests:

There can be no doubt then under 33 U.S.C. § 933(b) and the cases interpreting it that American's only rights in the circumstances of the present case run against Joyner and any recovery he may obtain in his third-party action. Only if American had obtained a formal award of benefits, and Joyner had not commenced a third-party action within six months of the entry of the award, would American have a substantive right directly against the third-party tortfeasor. This being the case, American is not a "real party in interest" in Joyner's suit against the third-party tortfeasor.

Id. at 1187-88.⁷ See also Del Re v. Prudential Lines, Inc., supra (after statutory assignment, right of action against shipowner belongs exclusively to stevedore and it therefore may not ratify longshoreman's suit under Fed.R.Civ.P. 17); Evans v. Transportacion Maritime Mexicana SS "Campeche", 639 F.2d 848, 861-63 (2d Cir. 1981) (Longshoreman's judgment against shipowner may not be reduced by amount of stevedore's compensation lien on basis that stevedore is real party in interest to the extent of its lien); Landon v. Lief Hoegh and Co., Inc., supra (stevedore is not an indispensible party under Fed.R.Civ.P. 19 by virtue of compensation lien). These decisions merely confirm what the structure...