923 F.2d 1127 | 5th Cir. | 1991
Lead Opinion
Joseph B. Fontenot and his wife, Ann Fontenot, sued his employer, Western Atlas International, Inc. (“Western Atlas”), and others, under the Jones Act and general maritime tort principles, for injuries that he sustained while off-loading his tool box from a crewboat that was docked in naviga
I
There is no dispute concerning the material facts. Fontenot started with N.L. McCullogh, an oil field service company, in 1971. Over the years, he worked in various positions for N.L. McCullogh. At some point between 1971 and 1988, Western Atlas acquired N.L. McCullogh. With the acquisition, Fontenot became an employee of Western Atlas, continuing his work as a wireline operator. At the time of the accident in 1988, Fontenot was still working as a wireline operator for Western Atlas, and held the title “Pipe Recovery Specialist”.
Because he worked for a service company, Fontenot was not permanently assigned to a specific platform, drilling vessel, or oil field. Instead, the operators of various oil production facilities, onshore, in state waters, and in federal waters, would contact Atlas requesting specific wireline services. Such services include running a well log, perforating a section of pipe, or setting off wireline charges to assist in pipe recovery operations. Atlas had a number of two-man crews that it would send out to the specified location, where the crew would stay only long enough to complete the requested task.
On the day of the accident, a crewboat
[M]y tool box was the last thing I picked up. I picked it up, and I turned around, and the boat moved a little. I slipped, and I caught myself; and, I felt my back hurt.
Asked if he was still on the boat when the injury occurred, Fontenot replied: “Yes.”
Fontenot also testified that he spent approximately forty percent of his time for Western Atlas onshore, thirty percent on fixed platforms,
After the accident, Fontenot received compensation under the Louisiana Worker’s Compensation provisions.
After discussing the matter with his employer, it is quite clear to me that Mr. Fontenot is not due and owing worker’s compensation but Longshore [and] Harbor Worker’s Act compensation....
Based on the information I have received and that has previously been provided to you, I am demanding on behalf of Mr. Joseph R. Fontenot that his true compensation under the Longshore [and] Harbor Worker’s Act of $633.00 per week be paid to him from the date of the accident until this date and thereafter until this matter is concluded. I understand that you will receive a credit for the worker’s compensation of $524.00 you were paying every two weeks, but the balance and compensation forward should be at the maximum amount stated above.7
Not content with the $633 per week plus medical expenses he was receiving under the LHWCA, Fontenot filed suit on April 19, 1989, in the Eastern District of Louisiana. He sued his employer, Western Atlas, and others, alleging that he was not in fact a covered employee within the LHWCA, rather, he was a seaman entitled to pursue relief under the Jones Act,
Western Atlas requested summary judgment on Fontenot’s claims, arguing that the LHWCA covered Fontenot and was his exclusive remedy against his employer. The trial court held that Fontenot was covered by the LHWCA and granted summary judgment in favor of Western Atlas. Fon-tenot and his wife appeal.
II
The only question the parties present is whether Fontenot satisfied both the status and situs tests, for coverage under the LHWCA.
The Gray Court held that a welder injured while working on a fixed oil production platform in state waters was not engaged in “maritime employment” within the meaning of the LHWCA.
This case presents both issues. Fontenot injured himself while on a vessel in navigable waters.
First, we address the issue whether an oil production worker injured in the course of his employment while on actual navigable waters satisfies the status test. In 1972, Congress amended the LHWCA to provide coverage for maritime employees injured on “any ... pier, wharf, dry dock, terminal, building way, maine way, or other ... area customarily used by an employer in loading, unloading, repairing, or building a vessel_” adjoining a navigable waterway.
After Gray and Perini North River Associates, the status test reflects a dual inquiry. First, if the employee was injured while on actual navigable waters, in the course of his employment, then he is engaged in maritime employment and satisfies the status test under Perini North River Associates.
In this case, Fontenot injured himself while on the crewboat. The crewboat was docked in actual navigable waters. Therefore, under the first part of the test, announced in Perini North River Associates, Fontenot, at the time of his injury, satisfied the status requirement of the LHWCA.
Fontenot’s work on oil production vessels may also qualify as maritime employment under Gray. In footnote 2 of its decision in Gray, the Court stated:
Offshore oil rigs are of two general sorts: fixed and floating. Floating structures have been treated as vessels*1131 by the lower courts. Workers on them, unlike workers on fixed platforms, enjoy the same remedies as workers on ships. If permanently attached to the vessel as crewmembers, they are regarded as seamen; if not, they are covered by the LHWCA because they are employed on navigable waters.25
The footnote seems to recognize LHWCA coverage for non-crew workers on oil production vessels.
The reasoning of the Gray Court also justifies our drawing a distinction between oil field workers on vessels and those on fixed platforms in state waters. In denying coverage to a welder on a fixed platform in state waters, the Court wrote:
The history of the Lands Act at the very least forecloses the Court of Appeals’ holding that offshore drilling is a maritime task and that any task essential thereto is maritime employment for LHWCA purposes.26
The Court also relied on the fact that building platforms and constructing pipelines are not inherently maritime tasks because they can “also [be] performed on land.”
But neither rationale applies to oil production operations from vessels. First, while the Lands Act applies to fixed oil production platforms in state waters, it does not apply to oil production vessels;
Thus, were Gray the last word on the status inquiry, we would consider a task to be maritime employment if it was done to enable a ship or vessel to engage in maritime commerce, unless it was specifically excluded by the LHWCA.
But in Chesapeake & Ohio Railway Company v. Schwalb,
Because he was on “navigable waters”, as that term was defined prior to the 1972 Amendments to the LHWCA, Fontenot satisfied both the status and situs tests. Fon-tenot is, therefore, covered by the LHWCA, and the LHWCA provides his exclusive remedy against his employer. The trial judge properly granted summary judgment in favor of Western Atlas.
Ill
We have some concerns about this case which we consider it appropriate to express. By addressing Fontenot’s status under the LHWCA, we are not implying that a plaintiff may seek a redetermination of the coverage question in a district court once the Department has ruled that an injured worker is covered by the LHWCA.
Worker’s compensation laws, like the LHWCA, typically replace a negligence action with an administrative system as the method for determining an employee’s right to, and amount of, compensation for injuries sustained on the job. As the Supreme Court has stated;
[T]he [LHWCA] is not a simple remedial statute intended for the benefit of the workers. Rather, it was designed to strike a balance between the concerns of the longshoremen and harbor workers on the one hand, and the employers on the other. Employers relinquished their defense to tort actions in exchange for limited and predictable liability. Employees accept the limited recovery because they receive prompt relief without the expense, uncertainty, and delay that tort actions entail.36
Essentially, both the employer and the employee gave up the right to a trial, which could be slow, expensive, and uncertain, in exchange for. hopefully, a quicker, less expensive, and more certain administrative system.
Permitting a trial court to redetermine issues decided by the administrative system effectively defeats the purpose of the LHWCA. Instead of creating certainty for both employer and employee, permitting a trial court to redetermine the coverage issue reintroduces uncertainty for both. Instead of lowering the cost of recovery for an injured worker, the worker must pay counsel both for representation on the LHWCA claim and again in seeking a jury award.
While we recognize that there are differences between the fact-finding processes in the administrative forum and in the judicial forum, we doubt that these differences are sufficient to deprive an injured employee of a fair opportunity to present the coverage issue before the Department.
IV
We hold that Fontenot is covered by the LHWCA because he was on actual navigable waters in the course of his employment at the time of his injury.
. 33 U.S.C.A. §§ 901-950 (West 1986).
. 33 U.S.C.A. § 905(a) (West 1986).
. In their brief on appeal, counsel for the appellants stated that the district court "has decided Joseph B. Fontenot is not a seaman under the Jones Act and therefore this issue will not be addressed herein." Although Fontenot did spend thirty percent of his time on oil production vessels, he cannot be considered a seaman under the Jones Act because he did not perform his work on an “identifiable group of vessels acting together or under one control.” See Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1074 (5th Cir.1986) (en banc).
. It is not entirely clear who actually owned and operated the crewboat, but the evidence showed that Western Atlas did not.
. The record does not show how much of his time he spent on fixed platforms in federal, as opposed to state, waters.
. La.Rev.Stat.Ann. §§ 23:1021-23:1379 (West 1985).
. Letter from Gary J. Ortego, Fontenot’s attorney, to CNA Insurance Companies (Aug. 3, 1988) (emphasis in original).
. 46 U.S.C.A.App. § 688 (West Supp.1990).
. Because of our resolution of the LHWCA issue, we do not address whether an injured employee who can satisfy the requirements of admiralty jurisdiction, but is neither a LHWCA maritime employee nor a Jones Act seaman, can sue his employer under general maritime tort principles. Worker’s compensation under state law may be a more appropriate remedy for such injured workers. Compare Director, Office of Workers’ Compensation Programs v. Perini North River Associates, 459 U.S. 297, 320 n. 30, 103 S.Ct. 634, 649 n. 30, 74 L.Ed.2d 465 (1983), with id., 459 U.S. at 339-40, 103 S.Ct. at 658-59 (Stevens, J. dissenting).
. See Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 415-46, 105 S.Ct. 1421, 1423-39, 84 L.Ed.2d 406 (1985); Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 264-65, 97 S.Ct. 2348, 2357-58, 53 L.Ed.2d 320 (1977).
. He was injured on a vessel in navigable waters.
. 470 U.S. 414, 105 S.Ct. 1421, 84 L.Ed.2d 406 (1985).
. 470 U.S. at 425-26, 427, 105 S.Ct. at 1428-29.
. See Gray, 470 U.S. at 424 n. 10, 427 n. 13, 105 S.Ct. at 1428 n. 10, 1429 n. 13.
. See Gray, 470 U.S. at 416 n. 2, 105 S.Ct. at 1424 n. 2.
. He also was in the process of unloading the Western Atlas equipment when he injured himself. Because we are uncertain whether this unloading differs sufficiently from that in Gray, 470 U.S. at 425, 105 S.Ct. at 1428 ("Gray’s welding work was far removed from traditional
.In Chesapeake & Ohio Ry. Co. v. Schwalb, three justices joined in the majority opinion, but concurred specially and expressed the view that so long as an employee "'spends some of his time in indisputably longshoring operations’”, then the employee is covered by the LHWCA even if he was not so engaged at the specific time of his injury. -U.S.-,-, 110 S.Ct. 381, 387, 107 L.Ed.2d 278, 289 (1990) (quoting Northeast Marine Terminal Co., 432 U.S. at 273, 97 S.Ct. at 2362).
. Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1972, Pub.L. No. 92-576, § 2, 86 Stat. 1251.
. Perini North River Associates, 459 U.S. at 299, 103 S.Ct. at 637-38 (quoting 1927 LHWCA, 44 Stat. (part 2) 1426).
. 459 U.S. 297, 103 S.Ct. 634, 74 L.Ed.2d 465 (1983).
. 459 U.S. at 311, 103 S.Ct. at 644.
. 459 U.S. at 325, 103 S.Ct. at 651.
. 470 U.S. at 425, 105 S.Ct. at 1428.
. 459 U.S. at 324, 103 S.Ct. at 650-51.
. 470 U.S. at 416 n. 2, 105 S.Ct. at 1424 n. 2 (citations omitted).
. 470 U.S. at 422, 105 S.Ct. at 1426-27 (footnote omitted).
. 470 U.S. at 424 n. 10, 105 S.Ct. at 1428 n. 10.
. Cf. Rodrigue v. Aetna Casualty & Sur. Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969).
. Gray, 470 U.S. at 424, 105 S.Ct. at 1427-28; see also Schwalb, — U.S. at-, 110 S.Ct. at 384-86, 107 L.Ed.2d at 286-87.
. Cf. Gray, 470 U.S. at 423-25, 105 S.Ct. at 1427-28.
. 33 U.S.C.A. § 902(3)(A)-(H) (West 1966).
. -U.S.-, 110 S.Ct. 381, 107 L.Ed.2d 278 (1990).
. Section 902(3) provides, in relevant part: The term “employee” means any person engaged in maritime commerce, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker....
33 U.S.C.A. § 902(3) (West 1986).
. Schwalb, - U.S. at -, 110 S.Ct. at 385, 107 L.Ed.2d at 287.
. H.R.Rep. No. 570, 98th Cong., 2nd Sess., pt. 1, at 3, reprinted in, 1984 U.S.Code Cong. & Admin.News 2734, 2736.
. Morrison-Knudsen Constr. Co. v. Director, Office of Workers’ Compensation, 461 U.S. 624, 636, 103 S.Ct. 2045, 2052, 76 L.Ed.2d 194 (1983); see also Peter v. Hess Oil Virgin Islands Corp., 903 F.2d 935, 951 (3d Cir.1990).
. Ideally, a worker's compensation system benefits both the average injured employee and the employer. By reducing the costs associated with the liability determination, primarily attorney’s fees, the administrative system can provide the average injured worker with a higher net recovery at a lower cost to the employer. Cf. Friedman & Ladinsky, Social Change and the Law of Industrial Accidents, 67 Colum.L. Rev. 50, 66-67, 71-72 (1967).
.While the LHWCA provides that prior awards under state worker’s compensation systems or under the Jones Act will be credited against subsequent LHWCA awards for the same injury, 33 U.S.C.A. § 903(e) (West 1986), this “crediting” practice does not protect the employer against the risk of a larger jury award, as intended by Congress in enacting the administrative system. Thus, when Professor Larson
. If we permit inconsistent coverage determinations, the Department could find that an injured employee is a seaman and deny compensation under the LHWCA; and in a subsequent (or prior) Jones Act suit, the district court might find that the employee is not a seaman, and, hence, dismiss the action.
. See Simms v. Valley Line Co., 709 F.2d 409, 411 (5th Cir.1983); McDermott, Inc. v. Boudreaux, 679 F.2d 452, 459 (5th Cir.1982).
. In two prior cases, we have permitted inconsistent determinations of the coverage issue because of the differing evidentiary rules and presumptions favoring the injured worker in the administrative forum. See Strachan Shipping Co. v. Shea, 406 F.2d 521, 522 (5th Cir.) (per curiam), cert. denied, 395 U.S. 921, 89 S.Ct. 1773, 23 L.Ed.2d 238 (1969); Young & Co. v. Shea, 397 F.2d 185, 188-89 (5th Cir. 1968), cert. denied, 395 U.S. 920, 89 S.Ct. 1771, 23 L.Ed.2d 237 (1969); see also Newport News Shipbuilding & Dry dock Co. v. Director, Office of Workers’ Compensation Programs, 583 F.2d 1273, 1278-79 (4th Cir.1978), cert. denied, 440 U.S. 915, 99 S.Ct. 1232, 59 L.Ed.2d 465 (1979). (We also addressed the issue prematurely in Boatel, Inc. v. Delamore, 379 F.2d 850, 854-56 (5th Cir.1967). See Young & Co., 397 F.2d at 187.) Since that time, the Court has stated that the relevant inquiry is whether the differences in procedure deprived the litigant of a fair opportunity to present the issue in the administrative forum. See Kremer v. Chemical Constr. Corp., 456 U.S. 461, 480-82, 102 S.Ct. 1883, 1896-98, 72 L.Ed.2d 262 (1982). Neither difference appears sufficient to deprive Fontenot of a fair opportunity to present the coverage issue to the Department. First, more permissive evidentiary rules are common in administrative tribunals; they reflect a considered judgment, by Congress, that much of the evidence kept from the jury (at least in part from a fear that the jury will accord too much weight to the evidence) can contribute to more accurate decision making by an administrative body. Because the more permissive evidentiary rules do not undermine the accuracy of the fact-finding process, they do not deprive an injured worker of a fair opportunity to litigate the issue before the Department. Cf. 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4422, at 215-16 (1981). Second, the presumptions contained in section 920 of the LHWCA represent a decision by Congress to expand the class of employees covered by the LHWCA. 33 U.S.C.A. § 920(a) (West 1986). Unlike the higher standard of proof in a criminal case, the presumptions do not justify permitting a redetermination of the coverage issue in a district court. The "beyond a reasonable doubt" standard is designed to protect the defendant from criminal sanctions. When criminal sanctions are not present, there is no reason to require a litigant to satisfy the criminal standard, and hence we say it would be unfair to bind a litigant in a civil case to findings made under the criminal standard of proof. In contrast, even if an injured worker is covered by the LHWCA solely because of the section 920 presumptions, he is still a covered employee. Congress intended all covered employees to accept both the benefits and the burdens of the LHWCA: every covered employee receives a quick, certain recovery, but gives up his right to seek any other recovery from his employer for the same injury. Hence, the presumptions do not make it unfair to bind a litigant, in a subsequent tort action, to a determination of coverage made by the Department, even though the section 920 presumptions may cause the Department to reach a result different from the one that would have been reached through a trial.
Concurrence Opinion
concurring:
I concur in the conclusion reached by Judge Wisdom’s able opinion and with much of its reasoning. I write separately, but briefly, to accent what we do not decide and to explain my differing view, an exercise I would not undertake if these issues appeared infrequently. I think it clear that Fontenot falls within the LHWCA’s coverage. He was injured while in transit on navigable waters, he spent thirty percent of his time working on vessels, and he was returning from work on a vessel at the time of his injury. We do not decide more. We do not reach the case, for example, of injury in transit on navigable waters of a worker on fixed platforms.
I must depart from the discussion of Herb’s Welding and Chesapeake, as applied to workers on vessels. Herb’s Welding and Chesapeake address the LHWCA’s status test in the context of a land-based or other non-vessel situs. After Perini, and the second footnote in Herb’s Welding, any work on a vessel in navigable waters in the course of employment is maritime employment; the character of the work is irrelevant. “[W]hen a worker is injured on the actual navigable waters in the course of his employment on those waters, he satisfies the status requirement in § 2(3) ...” Perini, 459 U.S. at 324, 103 S.Ct. at 650.
The parties saw the status issue in a different light; they focused on whether two of our cases, Pippen v. Shell Oil Co., 661 F.2d 378 (5th Cir.1981), and Boudreaux v. American Workover, Inc., 664 F.2d 463 (5th Cir.1981), survive Herb’s Welding. Both cases involved wireline operators injured while working on floating barges; we held that they met the LHWCA’s status test. It seems clear that the results in both cases survive Herb’s Welding, but not all of the reasoning.
