Rex Investigative and Patrol Agency, Inc. v. Collura

• Decision Date: 15 June 1971
• Docket Number: No. 69-C-1026.,69-C-1026.
• Parties: REX INVESTIGATIVE AND PATROL AGENCY, INC., Plaintiff, v. Michael J. COLLURA et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

329 F. Supp. 696

REX INVESTIGATIVE AND PATROL AGENCY, INC., Plaintiff, v. Michael J. COLLURA et al., Defendants.

No. 69-C-1026.

United States District Court, E. D. New York.

June 15, 1971.

Johnson, Zimbalist, Tannen & Katzman, New York City, for plaintiff; by Max L. Katzman, New York City, of counsel.

Edward R. Neaher, U. S. Atty. Eastern District of New York, for defendant Michael J. Collura; by Louis E. Greco, U. S. Department of Justice, of counsel.

Joseph J. Kelly, West Nyack, N. Y., for defendant Aetna Ins. Co.

ZAVATT, District Judge.

Plaintiff and the defendants Michael J. Collura (Collura) and Aetna Insurance Company (Aetna) move for summary judgment in this case concerning a Compensation Order and Award of the Defendant Collura, Deputy Commissioner of the Second Compensation District of the United States Department of Labor, Bureau of Employees' Compensation (the Bureau), entered on July 22, 1969 pursuant to the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 et seq.

Plaintiff, Rex Investigative and Patrol Agency, Inc. (Rex), is a small family-owned corporation in the detective and watchmen's service business. At all times relevant to the resolution of the issues involved on this motion, Rex was performing watchmen's services for Merritt-Chapman and Scott Corporation (Merritt-Chapman), to wit, patrolling the deck of and pier adjacent to Merritt-Chapman's vessel, the CURB, which docked at Pier 22, Staten Island, New York. In supplying said services, Rex employed the defendant Wesley Sarco (Sarco) who, on October 15, 1967, while on patrol aboard the CURB, sustained an injury to the lower back.

Sarco filed a claim with the New York State Workmen's Compensation Board, which was denied on March 15, 1968 in a "Notice of Decision" which contained the notation "closed disallowed no jurisdiction." Thereafter, on March 25, 1968, Sarco filed a claim for compensation with the Bureau. With reference to this claim, several informal conferences with the Deputy Commissioner were scheduled, on notice to Rex, none of which it attended. For this reason, the case was set down for a formal hearing on May 13, 1969. The alleged invalidity of the order and award that issued following that hearing is the basis for the plaintiff's motion.

The Order of the Deputy Commissioner found, in relevant part, that the defendant Sarco, while performing services as a watchman aboard the CURB, was in the employ of the plaintiff; that, in the performance of said duties, he was injured while the vessel was afloat upon the navigable waters of the United States, within the jurisdiction of the United States Workmen's Compensation Bureau; that his average weekly wage at the time of the injury was $131.30 per week; that as a result of the injury he was wholly disabled from October 16, 1967 to March 10, 1968, for which he was entitled to $70.00 per week; that as of March 11, 1968, the temporary total disability ended, and Sarco became temporarily and partially disabled, preventing Sarco from returning to his duties as a watchman; that, nevertheless, he continued working as a porter for which he earned $100.00 per week until July 20, 1969; that for this period he was entitled to 71 weeks of compensation at the rate of two-thirds the difference between his average wage at the time of the accident and his wage subsequent thereto, or $20.87 per week; that the total award was $2,951.77; and, further, that the employer had not secured compensation insurance for liability under the Act. Because of his finding that Rex was an "uninsured employer," the Deputy Commissioner directed the employer (and not the defendant Aetna Insurance Company) to pay the full amount of the award to Sarco.

The Plaintiff's Contentions

In support of its motion for summary judgment, plaintiff makes the following claims:

(1) The Compensation Order is invalid because the Deputy Commissioner lacked jurisdiction over the claim for compensation;

(2) Plaintiff was denied due process of law at the hearing because (a) it was unrepresented by counsel and (b) the hearing was held without the presence of Aetna, an allegedly necessary party;

(3) The Deputy Commissioner erred in directing the Order against the plaintiff alone because plaintiff's liability for compensation was covered by an insurance policy with Aetna;

(4) The Deputy Commissioner erred in his computation of the compensation award;

(5) The Order was invalid because the Deputy Commissioner's findings were not supported by substantial evidence.

In its first claim, plaintiff concedes that Sarco was aboard the CURB at the time of the accident but claims that his presence was merely a "temporary incident" of his employment on the pier and, therefore, Sarco's claim was not within federal cognizance. This conclusion is erroneous. 33 U.S.C. § 903 requires only that the injury occur upon the navigable waters of the United States in order for compensation to be payable under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), not the employment itself. The Deputy Commissioner quite properly found, on the undisputed evidence in the record, that the injury to Sarco occurred while the CURB was afloat upon navigable waters. In addition, even if Sarco's employment were to be deemed primarily land-based, his temporary presence aboard the vessel would be sufficient to sustain jurisdiction under the Act. Parker v. Motor Boat Sales, 314 U.S. 244, 62 S.Ct. 221, 86 L.Ed. 184 (1941). Furthermore, it would seem that even if the place of employment, rather than the place of injury, is the test for jurisdiction under the statute, there is some basis for concluding that a good deal of Sarco's responsibility was concerned with patrolling the deck of the CURB (16^*). Finally, it would also appear that inherent in the New York State Workmen's Compensation Board's order dismissing for lack of jurisdiction was the finding that this claim properly belonged before a federal, rather than a state, agency.

Plaintiff's second and most serious argument concerns the alleged denial of due process in the proceedings before the Deputy Commissioner arising from plaintiff's lack of representation by counsel at the hearing. It is a fundamental principle of constitutional law that the essential elements of due process are adequate notice and an opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). As to the right to counsel, however, plaintiff misconceives the concept of due process. Plaintiff cites a long line of cases concerning the right to counsel at various proceedings, but confuses the right to be represented by counsel, which is inherent in due process, with the necessity of being represented by counsel, which is not.

As noted, supra, Rex was given notice of four informal conferences, held prior to the formal hearing, which were unattended by Rex. The record indicates that on April 18, 1969, a letter was sent by the Deputy Commissioner to John Occhino, president of Rex, informing him that a formal hearing was to be held shortly thereafter; the issues to be presented thereat; the law applicable to the case; and the admonition:

"* * * it is essential that you or your representative attend this hearing to protect your interest."

At the hearing itself, Rex was represented by one Mary Morretino, the secretary of plaintiff corporation, who was not an attorney. At various times throughout the hearing, she protested the inherent unfairness of the proceeding on the ground that she lacked an understanding of the law relating to Sarco's claim, and requested an adjournment for the purpose of obtaining competent counsel. The ground asserted for this adjournment (which plaintiff again urges in support of the instant motion) was that, because of Mr. Occhino's alleged illness, Rex was unable to retain counsel in time for the hearing.

The Deputy Commissioner, referring to the Bureau's prior efforts to bring the parties in this case together, recited the list of unattended conferences, concluding that Rex had been given ample opportunity to retain counsel. He, therefore, denied Mrs. Morretino's application for an adjournment. As an alternative, he advised Mrs. Morretino that she could ask questions of witnesses and graciously offered his assistance in framing them. He also permitted her to be sworn and testify to the employer's position, which she declined to do, insistently reiterating her request for an adjournment. It should be emphasized that, as the Deputy Commissioner noted at the hearing, the injured employee had not received one penny for his injuries and lost wages up to the time of the hearing, almost one and one-half years after the date of the accident.

It is apparent from the foregoing that plaintiff's claim as to a denial of due process at the hearing is without merit. As plaintiff concedes in its brief in support of this motion, absent its claim relating to Mr. Occhino's illness, plaintiff indeed had ample opportunity to engage counsel but failed to do so (plaintiff's brief, p. 7). The additional factor of Mr. Occhino's illness does not compel a different result. Certainly, if the employee's claim was as important to Rex at the time of the hearing as the present litigation indicates it to be, Rex could have just as easily arranged for counsel to appear at the hearing instead of the admittedly unqualified Mrs. Morretino. In addition, the Deputy Commissioner went far beyond the call of duty in offering his assistance to the corporate secretary who, acting as agent for the corporation, recalcitrantly refused it.

The second part of plaintiff's second claim, as well as its third claim, concerns the question of whether Rex's workmen's compensation policy with Aetna covered its liability for Sarco's...