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Contents of Main Volume | Contents of Supplement
DISCLAIMER: The Longshore Benchbook was created solely to assist the Office of Administrative Law Judges as a first reference in researching cases arising under the Longshore and Harbor Workers' Compensation Act, and extension acts, as amended. This Benchbook does not constitute the official opinion of the Department of Labor, the Office of Administrative Law Judges, or any individual judge on any subject. This Benchbook does not necessarily contain an exhaustive or current treatment of case holdings, and should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any given subject referred to therein. It is intended to be used as a research tool, not as final legal authority and should not be cited or relied upon as such.
PDF Version: Volume I (Topics 1-21) | Volume II (Topics 22-90)
Description |
Topic |
Compensation/Liability |
4 |
Compensation Liability - Contractor/Subcontractor Liability |
4.1.1 |
TOPIC 4
Topic 4.1.1 Compensation
Liability—Employer
Liability—Contractor/Subcontractor
Liability]
Love v. AAA Temporaries, Inc. ___ So.3d ___ (No. 2003
CA 2735)(La. App. 1 Cir. Nov. 10, 2004).
In this procedural matter, a plaintiff temporary worker filed suit against the
agency assigning the worker and the company employing the worker, for injuries
sustained while working as a deckhand on a barge. A finding of the
company’s tort liability was contingent upon a determination of whether it
possessed LHWCA coverage under Section 4 at the time of the accident. The
appellate court found that although tort liability was contingent on whether
there was coverage at the time of the accident and that this determination was
pending on appeal, the trial court still retained jurisdiction to determine the
issue of liability.
____________________________
Topic 4.1.1 Compensation
Liability—Contractor/Subcontractor Liability
Maumau v. Healy Tibbits Builders, Inc.,
(Unpublished)(BRB Nos. 03-0830 and 04-0311)(Sept. 8, 2004).
The Board upheld the ALJ’s determination that in a Section 4(a) subcontractor
case, where the subcontractor fails to secure compensation, the general
contractor is liable for attorney fees. While Section 4(a) mentions only
“compensation,” it must be read in conjunction with Section 5(a), under which
an employer, as the general contractor, is liable for the benefits awarded to
claimants because of its subcontractors. Since the subcontractor failed
to comply with the insurance coverage requirements of the LHWCA, the employer
must be treated as the “employer” for compensation purposes. The ALJ
concluded that, as is the case with any employer liable for compensation under
the LHWCA, it is additionally liable for an award of an attorney’s fees if the
provisions of Section 28(a) or (b) are satisfied. The Board affirmed this
analysis and interpretation.
Topic 4.1.1 Compensation
Liability—Contractor/subcontractor Liability
Hebert v. Pride International, (Unpublished) (Civ. No.
03-0804)(E. D. La. March 5, 2004); 2004 U.S. Dist. LEXIS 3436.
This OCS summary judgment matter dealt with whether a worker was a borrowed
employee making his exclusive remedy workers' compensation benefits under the
LHWCA. Noting Fifth Circuit case law, the federal district court listed
the nine factors a court must consider in making a borrowed employee
determination.
Topic 4.1.1 Compensation
Liability–Contractor/Subcontractor Liability
Sobratti v. Tropical Shipping and Const. Co., Ltd.,
267 F. Supp. 2d 455 (D. Vir. Isls. 2003), 2003 WL 21418333.
The issue here is whether a trial court correctly granted a borrowing employer
summary judgment when a worker injured upon a vessel filed a LHWCA claim and
then filed an action in the Virgin Islands Territorial trial court against the
borrowing employer. [The Federal District Court of the Virgin Islands serves as
the appellate court of the Territorial Court.] Prior to the filing of the
trial court action, OWCP had found the claimant to be covered by the LHWCA and
the borrowing employer, Tropical Shipping, to be responsible. Claimant received
benefits from Tropical Shipping. He then filed a negligence action
against Tropical Shipping, claiming he fell into a “twilight zone” status of
uncertain LHWCA coverage.
The Virgin Islands Federal District Court concluded the summary judgment
against the claimant was proper given the claimant’s prior admissions on the
issue of borrowed employee. It found that his assertions ”conclusively
determined the issue of Tropical’s employer status thereby removing any genuine
dispute on that issue.” The court noted that, “The factual basis of
appellant’s entire negligence claim was that he was working for Tropical at the
time he was injured; that Tropical had a duty, as his employer, to provide safe
equipment and failed to do so in this instance by providing him with a
defective ladder, and that Tropical’s safety standards were breached.
Additionally, the assertions in the initial pleadings were consistent with
Sobratti’s claims to the administrative agency, for the purpose of recovering
benefits under the LHWCA. Throughout the administrative proceedings
following his injury, Sobratti continuously asserted and relied on the fact
that he was an employee of Alltempts, performing duties for
Tropical.” In sum, the court found that the record was replete with
admissions and facts which establish that Tropical was the borrowed employer
with control over the claimant’s work at the time he was injured and that
Tropical was protected under Section 5 of the LHWCA.
Topic 4.1.1 Compensation
Liability–Contractor/Subcontractor Liability
Hudson v. Forest Oil Corp., (Unpublished) (No. Civ. A.
02-2225)(E.D. La. June 2, 2003); 2003 WL 21276385; aff’d at 372 F.3d 742
(5th Cir. 2004).
In this “borrowing employer” case, the insurer of the claimant’s formal
employer paid compensation benefits and sought reimbursement from the insurer
of the borrowing employer. The federal district court rejected this claim
for reimbursement. The insurer of the formal employer had first cited Total
Marine Servs., Inc. v. Director, OWCP, 87 F.3d 774 (5th Cir. 1996),
for the proposition that when a formal employer has already paid benefits, it
is entitled to reimbursement for the borrowing employer. However, Total
Marine is distinguishable since its holding was conditioned on the fact
that there was no valid and enforceable indemnification agreement. In the
instant case there was such an agreement. The formal employer also argued
that any indemnification and waiver of subrogation clauses were invalid under
the Louisiana Oilfield Anti-Indemnity Act (LOAIA), La. Rev. Stat. Ann. § 9:2780.
The federal district court found the statute inapplicable and thus the
indemnification and waiver of subrogation were valid.
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