Thibodaux v. Atlantic Richfield Co.

• Decision Date: 22 September 1978
• Docket Number: No. 76-4216,76-4216
• Citation: 580 F.2d 841,1979 A.M.C. 1794
• Parties: Carolyn Harris THIBODAUX, Individually and as Administratrix of the Estate of the minor children, etc., Plaintiff-Appellant, v. ATLANTIC RICHFIELD COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 841

580 F.2d 841

Carolyn Harris THIBODAUX, Individually and as Administratrix of the Estate of the minor children, etc Plaintiff-Appellant, v. ATLANTIC RICHFIELD COMPANY, Defendant-Appellee.

No. 76-4216.

United States Court of Appeals Fifth Circuit.

Sept. 22, 1978.

Joseph L. Waitz, Lawrence E. Best, Houma, La., for plaintiff-appellant.

W. K. Christovich, New Orleans, La., for Atlantic Richfield Co.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, FAY and VANCE, Circuit Judges.

FAY, Circuit Judge:

This lawsuit arises from an unfortunate mishap which occurred on a Louisiana canal on June 10, 1974. On that day Van Thibodaux was employed as a workman by H. B. Buster Hughes, Inc. (Hughes), an oil field maintenance and construction company. Hughes contracted with Atlantic Richfield Company (ARCO) ¹ to supply a four-man crew to perform maintenance work on piping and flow lines at the Bully Camp Field. Mr. Julius Hebert, ARCO's production foreman in Southeast Louisiana, requested Hughes to supply a crew of men, a vessel to transport the crew to the Bully Camp Field which was accessible only by water, and a pollution pan to be placed on a sunken barge ² in the canal. The Hughes employees loaded the vessel ³ and equipment onto a truck and transported them to the canal, where they were offloaded. Despite the fact that the vessel had a capacity of only 900 pounds, the crew and equipment were placed aboard, and, with Hebert at the controls, the vessel was launched. The vessel sank a short distance from the launching area and Van Thibodaux drowned.

Carolyn Thibodaux, widow of the deceased, individually and on behalf of her four minor children, instituted an action against Hughes and its insurer, Employers Mutual Liability Insurance Company of Wisconsin, seeking recovery under the Jones Act, general maritime law, and the Longshoremen's and Harbor Workmen's Compensation Act, 33 U.S.C. §§ 901, et seq. (hereinafter referred to as the LHWCA). An action was also filed against ARCO under the general maritime law and the LHWCA alleging that ARCO negligently caused the death of the deceased. These actions were later consolidated upon motion of the plaintiffs. The plaintiffs' motion to add various employees as additional defendants was denied. All parties moved for summary judgment, and, after conducting a hearing, the trial court granted the defendants' motions, holding that (1) the deceased was not a seaman and hence no Jones Act recovery could be had (2) the deceased was not engaged in "maritime employment" within the meaning of 33 U.S.C. § 902(3) and hence no action exists under the LHWCA and (3) because ARCO is a statutory employer of the deceased within the meaning of LSA-R.S. 23:1061 any liability of ARCO is exclusively governed by the Louisiana Workmen's Compensation Act.

During the pendency of this appeal, the plaintiffs settled their claims against Hughes and its insurer, Employers Mutual Liability Insurance Company of Wisconsin. ⁴ Therefore, the only issue remaining in this appeal is whether the court was correct in granting summary judgment in favor of the defendant ARCO. We have concluded that the trial court correctly held that there is no genuine issue as to a material fact concerning the deceased's failure to meet the "maritime employment" requirement of the LHWCA. The LHWCA is therefore not applicable to this case. We further conclude, however, that the trial court erroneously held that any liability of ARCO is to be governed exclusively by the Louisiana Workmen's Compensation Act, and, accordingly, this case must be remanded for such further proceedings as may be necessary to resolve the rights and liabilities of the parties under general maritime law.

1. LHWCA

As we have stated, the plaintiffs settled their claim for any compensation benefits under the LHWCA with Hughes, the employer of the deceased, prior to the time that this case was orally heard. Since the compensation liability of a contracting employer for injury or death sustained by an employee of a subcontractor pursuant to 33 U.S.C. § 904 is secondary only, Probst v. Southern Stevedoring Co., 379 F.2d 763 (5th Cir. 1967), it would appear at first blush that the settlement agreement takes the issue of the applicability of the LHWCA out of this case. This conclusion does not follow. If the LHWCA is applicable to this case, and if it is determined that the deceased was a "borrowed employee" or "borrowed servant" of ARCO, the plaintiffs exclusive remedy against ARCO will lie in the recovery of compensation benefits under the Act. See, Gaudet v. Exxon Corp., 562 F.2d 351 (5th Cir. 1977). If that be the case, we need not consider whether the exclusive remedy provision of the Louisiana Workmen's Compensation Act prevents the plaintiffs from pursuing a general maritime action for wrongful death.

An employee now falls within the ambit of the LHWCA only if he can satisfy the dual tests of "situs" and "status" set forth in the Act. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977). The relevant provisions of the Act provide as follows:

Compensation shall be payable . . . in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States . . . . 33 U.S.C. § 903(a).

The term 'employee' means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload any small vessel under eighteen tons net. 33 U.S.C. § 902(3).

There is no dispute that the situs test is satisfied in that the deceased met his death upon navigable waters. ⁵ The sole question, therefore, with respect to the applicability of the Act is whether there is a genuine issue of material fact concerning the status of the deceased at the time of his death. In other words, is there a genuine issue of material fact as to whether the deceased was engaged in "maritime employment" within the meaning of the Act when the vessel sank? We must look to Caputo, supra, for guidance. In that case, compensation awards to respondents Blundo and Caputo had been affirmed by the Court of Appeals. Blundo, a "checker", was responsible for checking and marking cargo being unloaded from a vessel or from containers taken from the vessel. While marking cargo from a container, he slipped on the icy pier and was injured. Caputo was a member of a regular stevedoring "gang" for another company but was temporarily hired by Northeast Marine Terminal Company to load and unload containers, barges, and trucks at the pier. He was injured while loading ship's cargo into a truck. The Court in Caputo recounted the history of both the LHWCA and the 1972 amendments thereto, and we will therefore not repeat what is said there in detail. After noting that neither the text of the Act nor its legislative history defines the phrase "maritime employment", the Court concluded that both Blundo and Caputo satisfied the "status" test of eligibility for LHWCA compensation, seemingly applying a separate test to each.

The Court reasoned that in extending coverage shoreward in the 1972 amendments, Congress intended to provide coverage for those involved in modern cargo handling techniques, such as the unloading of a container. Blundo met the status requirement because at the time of the injury his activities were "clearly an integral part of the unloading process . . ." 432 U.S. at 271, 97 S.Ct. at 2361. Therefore, Blundo's activity at the time of injury qualified him for LHWCA benefits. As to the claimant Caputo, the Court recognized that the Congressional goal of adapting the Act to accommodate modern cargo handling techniques was irrelevant because Caputo was injured while loading cargo into a truck on the pier. Id. at 271-272, 97 S.Ct. 2348. However, the Court discerned a distinct Congressional objective which supports the status of Caputo as a covered employee. The Court Stated:

The Act focuses primarily on occupations longshoreman, harbor worker, ship repairman, shipbuilder, shipbreaker. Both the text and the history demonstrate a desire to provide continuous coverage throughout their employment to these amphibious workers who, without the 1972 amendments, would be covered for only part of their activity. It seems clear therefore, that when Congress said it wanted to cover 'longshoremen,' it had in mind persons whose employment is such that they spend at least some of their time in indisputably longshoring operations and who, without the 1972 amendments, would be covered for only part of their activity.

Id. at 273, 97 S.Ct. at 2362. Therefore, the Court recognized occupation as an alternative test to support status as a maritime employee. ⁶

With the alternative tests of occupation and activity at the time of injury in focus, we now proceed to determine whether the district court properly granted summary judgment on the issue of status in the case at bar. At the outset we recognize that summary judgment is indeed a "lethal weapon" ⁷ and is not to be used as a means to deprive a litigant of his right to trial by jury. Whitaker v. Coleman, 115 F.2d 305 (5th Cir. 1940). Summary judgment is proper only when there is no genuine issue as to a material fact and the movant is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Ecology Center of Louisiana, Inc. v. Coleman, 515 F.2d 860 (5th Cir. 1975). The Court should liberally construe all pleadings in favor of the party against whom the motion is made, Dassinger v. South Central Bell Telephone Co., 505 F.2d 672 (5th Cir. 1974), and the motion should be granted only when there is no substantial evidence in support of the non-m...