Uzdavines v. Weeks Marine, Incorporated

• Decision Date: 18 April 2003
• Docket Number: BRB 02-0512
• Parties: MARIE UZDAVINES (Widow of FRANK UZDAVINES), Claimant-Petitioner v. WEEKS MARINE, INCORPORATED, Self-Insured Employer-Respondent
• Court: Longshore Complaints Court of Appeals

MARIE UZDAVINES (Widow of FRANK UZDAVINES) Claimant-Petitioner v. WEEKS MARINE, INCORPORATED, Self-Insured Employer-Respondent

BRB No. 02-0512

April 18, 2003

Appeal of the Decision and Order Denying the Claim of Robert J Kaplan, Administrative Law Judge, United States Department of Labor.

Philip J. Rooney Israel, Adler, Ronca & Gucciardo, New York, New York, for claimant.

Christopher J. Field Field Womack & Kawczynski, LLC South Amboy, New Jersey, for self-insured employer.

Before: DOLDER, Chief Administrative Appeals Judge, SMITH and GABAUER, Administrative Appeals Judges.

DECISION and ORDER

PER CURIAM

Claimant appeals the Decision and Order Denying the Claim (2001-LHC-0352) of Administrative Law Judge Robert J. Kaplan filed pursuant to the provisions of the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C §901 et seq. (the Act). We must affirm the administrative law judge's findings of fact and conclusions of law if they are supported by substantial evidence, are rational, and are in accordance with law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

Frank Uzdavines (decedent) was employed as a welder in construction, shipyards, and factories for 35 years where he was exposed to asbestos. He alleged he was last exposed to asbestos while working for employer in 1990 as an oiler in the engine room of a dredge. Mr. Uzdavines retired in June 1990, due to a second heart attack, and filed a claim against employer in May 1991 seeking benefits for asbestosis. At the hearing, he admitted that he had entered into third-party settlements with asbestos manufacturers since 1991 without informing employer, and employer moved to dismiss the claim under Section 33(g)(1) of the Act, 33 U.S.C. §933(g)(1). Administrative Law Judge Ralph A. Romano summarily concluded that decedent admitted to these settlements and employer established that no written approval was given to decedent. Consequently, Judge Romano dismissed the claim. On appeal, the Board vacated Judge Romano's dismissal and remanded for further review of the applicability of Section 33(g)(1). Uzdavines v. Weeks Marine, Inc., BRB No. 96-1502 (May 19, 1997)(unpub.); see also CX 5. On remand, Judge Romano again dismissed the claim. No further action was taken in that case.

Decedent died on August 10, 1999, due, in part, to asbestos exposure, and claimant thereafter filed a claim for death benefits under the Act. Employer responded to that claim, seeking summary judgment on the basis that decedent was a member of a crew excluded from coverage under the Longshore Act. In his decision, Administrative Law Judge Robert D. Kaplan (the administrative law judge) determined that decedent was a member of the crew of the dredge and that the dredge is a vessel. He thus concluded that decedent is, as a member of a crew, excluded from coverage under the Act. See 33 U.S.C. ' 902(3)(G).

On appeal, claimant challenges the administrative law judge's dismissal of her claim for death benefits. Employer responds, urging affirmance.

Collateral Estoppel

Claimant asserts that the administrative law judge erred, as a matter of law, in failing to give binding effect to the decision of Judge Romano finding that decedent was "a person entitled to compensation" and thus covered under the Act. Specifically, claimant avers that the parties, in litigating decedent's disability claim, submitted a joint stipulation to Judge Romano, wherein employer conceded that the claim falls within the subject-matter jurisdiction of the Act. Claimant therefore argues that Judge Romano's decisions, read together with the Board's decision represent a final determination, on the merits, that decedent was covered under the Act. Claimant further avers that in contrast to the administrative law judge's conclusion, the "finding" of coverage on decedent's disability claim is binding on the parties in this survivor's claim. Claimant maintains that the administrative law judge's reliance on the Board cases in Doucet v. Avondale Industries, Inc., 34 BRBS 62 (2000), and Cortner v. International Oil Co., Inc., 22 BRBS 218 (1989), is misplaced as these holdings are irrelevant to the issue presented in the instant case. Lastly, claimant contends, citing Graziano v. General Dynamics Corp., 14 BRBS 950 (1982), aff'd sub nom. Director, OWCP v. General Dynamics Corp., 705 F.2d 562, 15 BRBS 130(CRT)(1^st Cir. 1983), that the administrative law judge erred in finding that the disability claim and death benefits claim are separate since they, in essence, merely represent a single claim for compensation, particularly with regard to the issue of coverage under the Act.

Collateral estoppel, or issue preclusion, prevents parties or their privies from relitigating in a subsequent action an issue of fact or law that was fully and fairly litigated in a prior proceeding. See Boguslavsky v. Kaplan, 159 F.3d 715, 719-20 (2d Cir. 1998); see also Comm'r of Internal Revenue v. Sunnen, 333 U.S. 591, 598 (1948) ("Once a party has fought out a matter in litigation with the other party, he cannot later renew that duel."). The doctrine of collateral estoppel may apply to preclude relitigation of an issue actually litigated in the prior case where the determination of the issue was a critical and necessary part of the judgment in the prior action. See, e.g., Figueroa v. Campbell Industries, 45 F.3d 311, 315 (9^th Cir. 1995); Taylor v. Plant Shipyards Corp., 30 BRBS 90, 96 (1996); Weber v. S.C. Loveland Co., 28 BRBS 321, 325 (1994). In particular, collateral estoppel applies when: "(1) the identical issue was raised in a previous proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was necessary to support a valid and final judgment on the merits." Boguslavsky, 159 F.3d at 720.

With regard to the adjudication of the decedent's disability claim, following decedent's hearing testimony that he had entered into third-party settlements with asbestos manufacturers without informing employer, employer moved to dismiss the claim under Section 33(g)(1). Judge Romano granted employer's motion and thus summarily dismissed the decedent's disability claim pursuant to Section 33(g)(1). In its decision, the Board held that Judge Romano did not make the requisite determination as to whether the decedent was a "person entitled to compensation, " or the necessary "comparison between the gross amount of claimant's aggregate third-party settlement recoveries and the amount of compensation, excluding medical benefits, to which claimant would be entitled under the Act." Uzdavines, slip op. at 3. Accordingly, the Board remanded the case for consideration of these issues. Id. On remand, Judge Romano again dismissed the disability claim under Section 33(g)(1) since "[t]he parties have agreed that [decedent]: is a 'person entitled to compensation' under the Act, " and the amount decedent received due to the settlements was less than the compensation to which he would have been entitled to under the Act. Judge Romano's Decision and Order on Remand at 1-2.^[1]

In reviewing the administrative decision regarding decedent's disability claim, the administrative law judge in the present claim observed that the parties submitted a joint stipulation to Judge Romano stating that decedent was a person entitled to compensation for purposes of Section 33(g). The administrative law judge, however, concluded that this stipulation does not constitute a concession of coverage under the Act by employer. Additionally, the administrative law judge found that Judge Romano's decision contains no explicit or implicit finding that the decedent's disability claim came within the coverage of the Act.

From the decisions regarding decedent's inter vivos claim, it is clear the sole issue which was actually litigated before Judge Romano involved whether that claim was barred by Section 33(g)(1). The present case is a claim for death benefits in which employer has controverted the claim on the basis that decedent was a member of a crew while working for employer on the dredge and thus excluded from coverage under Section 2(3)(G) of the Act.^[2] This issue was as the administrative law judge found, never raised, and it thus was not actually litigated before Judge Romano. Figueroa, 45 F.3d 311 (collateral estoppel is not applicable when record does not reflect an express finding by anyone in the prior administrative proceeding that claimant was a "member of a crew"). Thus, the doctrine of collateral estoppel does not apply to the coverage issue raised in this case. See Epperson v. Entertainment Express, Inc, 242 F.3d 100 (2d Cir. 2001); Sedlack v. Braswell Services Group, Inc., 134 F.3d 219 (4^th Cir. 1998); Figueroa, 45 F.3d 311; Formoso v. Tracor Marine, Inc., 29 BRBS 105 (1995); Kollias v. D&G Marine Maintenance, 22 BRBS 367 (1989), rev'd on other grounds, 29 F.3d 67, 28 BRBS 70(CRT)(2d Cir. 1994), cert. denied, 513 U.S. 1146 (1995). Moreover, we hold that, in contrast to claimant's assertion, the parties' prior agreement before Judge Romano that decedent was a "person entitled to compensation" cannot be interpreted as a stipulation to decedent's coverage under the Act in the death claim.^[3] Initially, the documents in the prior proceeding state that this stipulation was not binding in any other claims against employer. Furthermore, an employer need not admit liability in order for a claimant to be a "person entitled to compensation" for purposes of Section 33(g). See Nicklos Drilling Co. v. Cowart, 927 F.2d 828, 24 BRBS 93(CRT) (5^th Cir. 1991) (en banc), aff'd sub nom. Estate of Cowart v. Nicklos...