Williams v. Ingalls Shipbuilding, Incorporated
| Decision Date | 08 June 2001 |
| Docket Number | BRB 00-908 |
| Parties | MARJORIE C. WILLIAMS (Widow of ELIAS L. WILLIAMS), Claimant-Petitioner v. INGALLS SHIPBUILDING, INCORPORATED and AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, IN LIQUIDATION, by and through THE MISSISSIPPI INSURANCE GUARANTY ASSOCIATION, Employer/Carrier-Respondents |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Decision and Order Denying Benefits and the Decision on Motion for Reconsideration of David W. Di Nardi Administrative Law Judge, United States Department of Labor.
Robin Reid Boswell (Nelson & Boswell), Pascagoula, Mississippi for claimant.
Donald P. Moore (Franke, Rainey & Salloum), Gulfport, Mississippi, for employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, SMITH and DOLDER, Administrative Appeals Judges.
DECISION and ORDER
Claimant appeals the Decision and Order Denying Benefits and the Decision on Motion for Reconsideration (1996-LHC-1851) of Administrative Law Judge David W. Di Nardi rendered on a claim 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).
Decedent worked for employer as a carpenter in the 1940's, during which time he was exposed to asbestos. In 1993, decedent was diagnosed with asbestosis, and in 1994, he was diagnosed with lung cancer. Cl. Exs. 4-12. In July 1994, decedent entered into an agreement with Babcock & Wilcox, settling an asbestos claim for $2, 000, of which decedent received $800. Emp. Ex. 7. He died on December 14, 1994, having settled no additional suits, and on December 7, 1995, claimant, decedent's widow, filed a claim for death benefits under the Act. Cl. Exs. 1, 32. Employer argued that claimant is not entitled to benefits because she executed unapproved third-party settlements subsequent to her husband's death, in violation of Section 33(g) of the Act, 33 U.S.C. §933(g).
The administrative law judge first found that decedent's death was causally related to his employment. Decision and Order at 8, 10. He then found that claimant is entitled to death benefits based on the national average weekly wage at the time of decedent's death in 1994, as decedent was a voluntary retiree. Id. at 13, 15. He also awarded interest and funeral expenses. Id. at 15-16. Based on the parties' stipulations, the administrative law judge found that employer is the responsible employer; however, he denied benefits. He concluded that claimant's third-party counsel, Maples & Lomax, acting on claimant's behalf, accepted and/or deposited checks from the Amatex Trust Claims Facility, representing Amatex Corporation (formerly the American Asbestos Textile Corporation), a bankrupt third-party defendant, and the Manville Personal Injury Settlement Trust, and that these actions constituted unapproved acceptances of settlement offers for amounts significantly less than the amount to which claimant would be entitled under the Act. Id. at 20-24. Accordingly, he held that Section 33(g) applied to bar claimant's entitlement to benefits under the Act. Id. at 24-25.
Claimant timely moved for reconsideration and modification, attaching a number of documents to her motion. Cl. Ex. 32. Mr. Lomax also filed a letter, explaining his actions in the third-party proceedings. Cl. Ex. 33. Employer filed a motion to strike Mr. Lomax's letter and the attachments thereto, Emp. Ex. 12, as well as a motion to strike/in opposition to claimant's motions. The administrative law judge denied employer's motion to strike Mr. Lomax's letter, stating "it is proper for Attorney Lomax to file for reconsideration." Further, the administrative law judge "considered the matter[, ]" "conclude[d] there is no valid basis for modification" of the decision, and denied reconsideration. Claimant appeals both decisions, contending the administrative law judge made numerous errors, procedural and factual, in concluding that Section 33(g) bars her entitlement to benefits. Employer responds, urging affirmance.
The facts on which the Section 33(g) arguments are based deal primarily with actions taken by Maples & Lomax with respect to two third-party claims. On May 9, 1995, claimant signed a document selecting the law firm of Maples & Lomax as her attorneys. Maples & Lomax received a letter dated October 9, 1996, from the Amatex Trust. The letter stated that the Trust had approximately 15 million dollars with which to settle all claims filed against it, that the bankruptcy court approved specific payout guidelines on May 9, 1996, for those claims, and it supplied the firm with the "proof of claim" forms necessary to assert claims against the fund.[1] Counsel received a letter from the Amatex Trust dated September 23, 1998.[2] Enclosed was a check to the Maples & Lomax trust account for $107, 280 for all their claiming clients; $480 was earmarked for claimant. Cl. Ex. 28. On October 6, 1998, counsel deposited the Amatex check into their trust account. Emp. Ex. 6. In mid-1999, employer propounded additional interrogatories and requests for admissions to claimant in discovery of the claim under the Act. In September 1999, claimant answered, denying any third-party settlements. In a supplemental set of answers in October 1999, claimant admitted to counsel's holding the $480, as well as a check in the amount of $9, 000 received from the Manville Trust.[3] Cl. Ex. 25, 27. On October 13, 1999, Maples & Lomax issued a letter and a check to the Amatex Trust, returning the $480 representing claimant's portion of the Amatex payout. Cl. Ex. 28. The hearing in this case was held on October 27, 1999.
Employer argued that counsel's depositing of the Amatex check in their trust account and retaining the amount therein for over one year, and the holding of the Manville check, constituted unapproved settlements pursuant to Section 33(g)(1), 33 U.S.C. §933(g)(1). Accordingly, employer asserted that claimant's personal knowledge is irrelevant, as counsel had the authority to act on her behalf by virtue of her decision to retain them. Nor, it argued, does it matter that claimant ultimately did not accept the money, as claimant only effected such rejection after employer extracted information concerning the payments through the discovery process.
The administrative law judge found that the acceptance and depositing of the Amatex check into the Maples & Lomax trust account and the holding of the Manville check by Maples & Lomax were sufficient actions to constitute settlements between claimant and these third parties. He concluded that claimant's entitlement to benefits under the Act ceased upon receipt and retention of that money. He noted that, although there was no evidence regarding whether Amatex would accept the refund check, counsel's experience combined with the fact that they held onto the check for so long served to discredit the argument that a settlement had not been effected. Decision and Order at 23. In moving for modification, claimant argued that the administrative law judge made factual errors, as the attachments to the motion establish that the Amatex and Manville suits have not been settled. Cl. Ex. 32. Moreover, claimant asserted that she made a request at the hearing to leave the record open for evidence documenting Amatex's acceptance of the refund check, but the administrative law judge denied the request, stating that the information would be cumulative and irrelevant. Tr. at 68-70. As stated above, the administrative law judge denied the motion for reconsideration and did not address the motion for modification.
Claimant contends the administrative law judge erred in applying Section 33(g) to preclude her from receiving benefits under the Act. She first contends the administrative law judge erred in finding that settlements had been effected by her "representatives" and by applying Mississippi's agency law to define the term "representative" under Section 33(g). The administrative law judge found that claimant hired Maples & Lomax to represent her and that they had full authority to act on her behalf. Decision and Order at 21. Further, the administrative law judge rejected claimant's assertion that the decision of the United States Court of Appeals for the Ninth Circuit in Mallott & Peterson v. Director, OWCP [Stadtmiller], 98 F.3d 1170, 30 BRBS 87(CRT) (9th Cir. 1996), cert. denied, 520 U.S. 1239 (1997), is controlling precedent. He found that because this case arises within the United States Court of Appeals for the Fifth Circuit and because state law controls the determination of whether a settlement has been executed, the Ninth Circuit case is distinguishable.
33 U.S.C. §933(g) (emphasis added). Section 33(c) of the Act, 33 U.S.C. §933(c), defines "represe...
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