Perez v. Costa Armartori, SPA, 78 Civ. 1547.

Decision Date26 February 1979
Docket NumberNo. 78 Civ. 1547.,78 Civ. 1547.
Citation465 F. Supp. 1211
PartiesLuis PEREZ, Plaintiff, v. COSTA ARMARTORI, S.P.A., Defendant.
CourtU.S. District Court — Southern District of New York

Zimmerman & Zimmerman, New York City, for plaintiff by Morris Cizner, New York City, of counsel.

Michael D. Martocci, New York City, for defendant.

MEMORANDUM AND ORDER

WHITMAN KNAPP, District Judge.

This is an action by a longshoreman, Luis Perez, to recover damages for personal injuries he claims to have suffered in a fall on board a ship owned by the defendant, Costa Armartori, S.P.A. The shipowner now moves for summary judgment dismissing the complaint as time-barred. We deny that motion.

There is substantial agreement on the relevant facts. Some ten months after the injury, an agreement was reached between plaintiff, his compensation representative, and his employer, the John W. McGrath Corporation ("McGrath") on compensation for the injury. That settlement was confirmed by a Department of Labor claims examiner, John G. Provenza, in a letter to McGrath dated February 23, 1977. Plaintiff commenced this action by filing a summons and complaint on April 6, 1978, more than thirteen months after the claims examiner's letter.

Defendant bases its motion upon Section 33(b) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 933(b), which provides that an injured worker's right to pursue an action against a shipowner is assigned to the worker's employer if the worker was awarded compensation "under an award in a compensation order filed by the deputy commissioner or the Benefits Review Board" and fails to commence such an action within six months thereafter. Section 33(b) is quoted in its entirety in the margin.1

The question now before us is whether the facts recited above are sufficient to demonstrate that the plaintiff has been awarded compensation under an award "in a compensation order filed by the deputy commissioner or the Board." We answer that question in the negative.

Defendant relies upon Judge Carter's decision in Rodriguez v. Compass Shipping Co. Ltd. (S.D.N.Y.1978) 456 F.Supp. 1014. The Rodriguez decision clearly supports defendant's position but, with deference, we find ourselves unable to follow it. In the case at bar, as had been the situation in Rodriguez, there is no evidence that the deputy commissioner or the Board ever "filed an award in a compensation order" or that the claims examiner (or anyone else) was ever authorized to file such an order on the deputy commissioner's behalf. Judge Carter obviated the need for such evidence by taking judicial notice of what he believed to be normal bureaucratic procedures. It seems to us, however, that where a defendant seeks to invoke a statute of limitations, it should have the burden of actually establishing the prerequisites for such invocation. We accordingly follow those cases holding that a defendant cannot benefit from Section 33(b)'s six-month limitations period unless he first demonstrates either (1) that the Board or the deputy commissioner filed a compensation order or (2) that some third person was duly authorized to—and did indeed—so file on the deputy commissioner's behalf. Grasso v. Lorentzen (2d Cir. 1945) 149 F.2d 127, aff'g (S.D.N.Y.1944) 56 F.Supp. 51, cert. denied (1945) 326 U.S. 743, 66 S.Ct. 57, 90 L.Ed. 444; Roeben v. United States (D.N.J.1953) 113 F.Supp. 732, 735; Romano v. United States (S.D.N.Y.1950) 90 F.Supp. 15; Sessa v. Weeks Stevedoring Co. (S.D.N.Y.1943) 56 F.Supp. 50.

Defendant contends that these cases are undercut by the promulgation in 1977 of 20 C.F.R. § 702.312, which provides:

"702.313 Informal conferences; called by and held before whom.
Informal conferences shall be called by the deputy commissioner or his designee assigned or reassigned the case and held before that same person, unless such person is absent or unavailable. When so assigned, the designee shall perform the duties set forth below assigned to the deputy commissioner, except that a compensation order following an agreement shall be issued only by a person so designated by the Director to perform such duty." (emphasis supplied)

While this regulation authorizes the designation of a third party for the purpose of issuing a compensation award, it says nothing about how such designation should be established. We hold that in situations where a party relies upon Section 33(b)'s six-month limitations period, the burden of establishing filing by the deputy commissioner or delegation of authority to file rests with the party seeking to invoke the limitation.2 Such burden has not been satisfied here.

We accordingly need not reach plaintiff's claim that a "conflict of interest" between plaintiff and...

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  • In re Grosso, Bankruptcy No. 80 00263
    • United States
    • U.S. Bankruptcy Court — Northern District of New York
    • March 16, 1981
    ...the burden of proof to establish the elements of an affirmative defense of the statute of limitations. See, Perez v. Costa Armartori, S.P.A., 465 F.Supp. 1211 (S.D.N.Y.1979); Ludger Doyon v. Robert Bascom, 38 App.Div.2d 645, 326 N.Y.S.2d 896 (3rd Dep't 1971); Mead v. Warner Pruyn Division, ......
  • Rodriguez v. Compass Shipping Co. Ltd.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 19, 1980
    ...Shipping Line, Ltd., 468 F.Supp. 799 (S.D.N.Y.1979); Hernandez v. Costa Armatori, 467 F.Supp. 1064 (E.D.N.Y.1979); Perez v. Costa Armartori, 465 F.Supp. 1211 (S.D.N.Y.1979); Bandy v. Bank Line, Ltd., 442 F.Supp. 882 Section 33(b) provides that "(b) Acceptance of (statutorily fixed) compensa......
  • Del Re v. Prudential Lines, Inc.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 21, 1982
    ...(Duffy, J.); Perez v. Arya National Shipping Lines, Inc., 468 F.Supp. 799 (S.D.N.Y.1979) (Lasker, J.); Perez v. Costa Armatori, S.P.A., 465 F.Supp. 1211 (S.D.N.Y.1979) (Knapp, J.). ...
  • Panzella v. Skou
    • United States
    • U.S. District Court — Southern District of New York
    • May 14, 1979
    ...(Carter, J.); see Liberty Mutual Insurance Co. v. Ameta & Co., 564 F.2d 1097 (4th Cir. 1977). But cf. Perez v. Costa Armartori, S.p.A., 465 F.Supp. 1211 (S.D.N. Y.1979) (Knapp, J.) (absent evidence that claims examiner was expressly authorized to file compensation order on deputy commission......
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