Voisin v. Ocean Protein, Inc.

• Decision Date: 20 October 1970
• Docket Number: Civ. A. No. 69-550.
• Citation: 321 F. Supp. 173
• Parties: Magnus VOISIN, Plaintiff, v. OCEAN PROTEIN, INC., and Argonaut Insurance Company, Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

321 F. Supp. 173

Magnus VOISIN, Plaintiff, v. OCEAN PROTEIN, INC., and Argonaut Insurance Company, Defendants.

Civ. A. No. 69-550.

United States District Court, E. D. Louisiana, New Orleans Division.

October 20, 1970.

Darryl Tschirn, Reginald T. Badeaux, Jr., Badeaux, Discon & Associates, New Orleans, La., for plaintiff.

Charles Hanemann, O'Neal, Waitz & Henderson, Houma, La., for Argonaut Ins. Co.

Robert B. Deane, Chaffe, McCall, Phillips, Burke, Toler & Sarpy, New Orleans, La., for Kenneth Leslie Symes and Ocean Protein, Inc.

CASSIBRY, District Judge:

This matter is before the court for a determination of which insurer or insurers afford coverage for the stipulated liability of the assured and settlement in amount of $45,000, with respect to plaintiff's original claim.

Defendant Argonaut is the Workmen's Compensation and Employers' Liability insurer of Ocean Protein, Inc. Defendant Argonaut will be referred to as Employers Liability.

Employers Liability brought a third-party action against "Certain Underwriters at Lloyds of London and Certain Other British Insurance Companies" as the Protecting and Indemnity (P. & I.) insurers of Ocean Protein, Inc.'s fishing vessels. This third party defendant answered in the name of the lead underwriter, Kenneth Leslie Symes, but will be referred to here as P. & I. Employers Liability alleged that P. & I. afforded primary or co-insurance with respect to the claim of plaintiff Voisin.

P. & I. filed a counterclaim against Employers Liability and a third-party action against what was believed to be Employers Liability's excess insurers, also named as "Certain Underwriters at Lloyds and Certain British Insurance Companies". This last third-party defendant will be referred to as Excess.

Employers Liability and P. & I. settled plaintiff's claim, reserving all rights, and have filed a joint stipulation with the court outlining the nature of Ocean Protein's business, the circumstances out of which this suit arose, and attaching the relevant policies.

Ocean Protein, Inc. has a fleet of vessels which catch menhaden fish which are brought to Ocean Protein's plant at Dulac, Louisiana, where the fish are processed into fishmeal and fish oil. Plaintiff Voisin, an employee of Ocean Protein, was a net mender who worked primarily ashore but also mended the boats' nets on his employer's boats when they were at the dock.

While mending a net aboard the F/V RACHEL BURTON, Voisin slipped on something on the deck and injured his knee. He brought this suit against his employer, the owner of the RACHEL BURTON, under the warranty of seaworthiness afforded maritime workers who further the objective of the vessel upon which they are working, although not crewmembers of the vessel.

Until a few years ago the law was clear that an employer's sole liability to a maritime non-crewmember employee injured aboard a vessel in navigable waters, was payment under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901, 905, which provided, "The liability of an employer prescribed in Section 904 (longshoremen's compensation) of this title shall be exclusive and in place of all other liability of such employer to the employee * * *".

On the basis of the quoted Act, Voisin's sole remedy would have been longshoremen's compensation under coverage afforded by the compensation portion of Argonaut's Workmen's Compensation and Employers' Liability Policy. However, in 1963 the United States Supreme Court held in Reed v. S/S YAKA¹ that longshoremen's compensation was not the exclusive liability of the employer where the employer was also the owner of the vessel on which the employee was injured as a result of unseaworthiness.

As a result, the precise areas of coverage provided in the Employers' Liability policy on the one hand and the P. & I. policy on the other, come into conflict. Employers Liability's policy provided coverage for compensation and personal injury liability to employees and P. & I. contemplated liability coverage for injury to seamen-crewmembers or third persons, but neither contemplated damage liability to an employee who comes within the scope of the Longshoremen's Compensation Act.

Plaintiff, while apparently entitled to the warranty of seaworthiness,² is not a master or member of the crew of the vessel (Jones Act seaman) so that those endorsements and exclusions in the policies pertaining to "masters or members of the crews of vessels" do not apply to the issues at hand. To further complicate the matter, both policies contain "other insurance" clauses which attempt to avoid or limit coverage where other insurance applies. Thus the issues before the court are:

(1) Does Argonaut's Standard Workmen's Compensation and Employers' Liability Policy afford sole or primary coverage?

(2) Does Underwriters at Lloyds P. & I. Policy afford sole or primary coverage?

(3) Do Employers' Liability and P. & I. afford co-insurance?

(4) If the policies afford co-insurance, should the stipulated liability ($45,000) be shared equally by Employers' Liability and P. & I., or on some other basis?

The language of the Employers' Liability Policy clearly covers the present claim. The Employers' Liability Policy provides on the first page, Coverage A, that it shall pay "all compensation and other benefits required of the insured by the workmen's compensation law." Coverage B of the same policy undertakes "to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury by accident or disease * * * by any employee of the insured arising out of and in the course of his employment * * *" Voisin was not a master or member of the crew, so the exclusions do not apply.

The court in Brickley v. Offshore Shipyard, Inc., 270 F.Supp. 985 (E.D. La.1965), interpreted a similar Workmen's Compensation and Employers' Liability Policy. It held that Coverage B as quoted above specifically applies to personal injury claims by an employee against his employer. The court stated,

"Coverage under that wording encompasses any accident sustained by an employee of the insured which arose out of and in the course of his employment. The legal theory under which such an employee might institute suit is totally irrelevant under the terms of the policy. The only requirement for coverage is that the injury be sustained by the employee during his employment."

The Brickley case was similar to ours in that plaintiff was injured aboard his employer's barge and sued under the Jones Act (master or member of the crew) but alternatively claimed under the warranty of seaworthiness, as in the instant case. The court pointed out that while the Jones Act claim might be excluded under the terms of the policy, if there was a cause of action for breach of the warranty of seaworthiness under Seas Shipping Co. v. Sieracki, supra, and Reed v. YAKA, supra, the policy specifically afforded coverage in respect of an employee's injuries irrespective of the fact that plaintiff had accepted...