Opinion
CIVIL ACTION NO. 02-3099, SECTION "C" (3).
July 4, 2003.
MINUTE ENTRY
This matter comes before the Court on motion for summary judgement filed by Defendants, Superior Shipyard and Fabrication, Inc. and T.T.C. Illinois ("Superior Shipyard"). Having considered the record, the memoranda, and the law, the motion is DENIED for the following reasons. Background
John S. Goehring, a third year law student at Tulane Law School, assisted with the research and preparation of this decision.
This Section 905(a) action under the Longshore and Harbor Workers Compensation Act ("LWCHA") ( 33 U.S.C. § 901 et seq.), arises from an injury allegedly sustained by Brian Cheramie ("Cheramie") while working aboard a boat in drydock in Superior Shipyard's premises. Cheramie alleges he was an employee of Superior Shipyard at the time of the accident, April 12, 2001, and the boat on which he was working was owned by a third party, Night Moves of Cutoff, Inc. ("Night Moves"). Cheramie alleges that Superior Shipyard was negligent, that their negligence caused Cheramie's injury, and that Superior shipyard is liable for compensatory damages. Apparently Cheramie also held Night Moves liable, and independently reached a settlement with Night Moves for $78,000.00, allegedly without getting approval from or giving notice to his employer Superior Shipyard.
Summary Judgment — Standard of Review
A district court can grant a motion for summary judgment only when the "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court must find a "factual dispute . . . [to be] `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be] `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). "If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (Citing Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53, 91 L.Ed.2d 265 and Fed.R.Civ.P.56(e)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 248, 106 S.Ct. at 2510, 91 L.Ed.2d 202. "If the evidence is merely colorable, or is not significantly probative, "summary judgment is appropriate." Id., at 249-50, 106 S.Ct. at 2511, 91 L.Ed.2d 202(citations omitted).
Section 933
Superior Shipyard's motion to dismiss is based upon Section 933 of the Longshore and Harbor Workers Compensation Act ("LHWCA"). 33 U.S.C. § 933. Section 933(a) states that if a third party is liable for damages, the injured employee may choose both to receive compensation from the employer and recover damages against the third party. Id. Section 933(f) provides that if the net amount recovered from the third party is less than the amount to which the employee is entitled under the statute, then the employer shall pay the injured employee enough compensation to make up the difference. Id. Section 933(g)(1) provides that the employer need pay the difference only if written approval of the settlement is obtained from the employer and the employer's insurance carrier. Id. Section 933(g)(2) states that if the employee fails to notify the employer of his third party settlement or judgment, "all rights to compensation and medical benefits under this chapter shall be terminated." Id.
Section 933(a) states, "Election of Remedies — If on account of a disability or death for which compensation is payable under this chapter the person entitled to such compensation determines that some person other than the employer or a person or persons in his employ is liable in damages, he need not elect whether to receive such compensation or to recover damages against such third person." 33 U.S.C. § 933(a).
Section 933(f) states, "Institution of proceedings by person entitled to compensation — If the person entitled to compensation institutes proceedings within the period prescribed in subsection (b) of this section the employer shall be required to pay as compensation under this chapter a sum equal to the excess of the amount which the Secretary determines is payable on account of such injury or death over the net amount recovered against such third person. Such net amount shall be equal to the actual amount recovered less the expenses reasonably incurred by such by such person in respect to such proceedings (including reasonable attorney's fees)." 33 U.S.C. § 933(f) .
The relevant portion of § 933(g)(1) states, "If the person entitled to compensation (or the persons's representative) enters into a settlement with a third person referred to in subsection (a) of this section for an amount less than the compensation to which the person (or the person's representative) would be entitled under this chapter, the employer shall be liable for compensation as determined under subsection (f) of this section only if written approval of the settlement is obtained from the employer and the employer's carrier, before the settlement is obtained from the settlement is executed, and by the person entitled to compensation (or the person's representative). 33 U.S.C. § 933(g)(1).
Section 933(g)(2) states, "If no written approval of the settlement is obtained and filed as required by paragraph (1), or if the employee fails to notify the employer of any settlement obtained from or judgment rendered against a third person, all rights to compensation and medical benefits under this chapter shall be terminated, regardless of whether the employer or the employer's insurer has made payments or acknowledged entitlement to benefits under this chapter. 33 U.S.C. § 933(g)(2).
Superior Shipyard argues that, in accordance with Section 933(g)(1) and (2), Cheramie has waived his right to sue his employer because he settled with a third party, Night Moves, without the prior approval of Superior Shipyard. The Court does not agree with this interpretation of Section 933(g). Section 933 concerns compensation, a form of recovery explicitly distinguished from damages throughout the LHWCA. See 33 U.S.C. § 905(a) ("an injured employee . . . may elect to claim compensation under this chapter, or to maintain an action at law or admiralty for damages"). Here, Cheramie has brought suit to recover "all compensatory damages." (Rec. Doc. 1, Jury Demand). He reiterates in opposing this motion, "plaintiff is not seeking compensation for medical benefits as prescribed by LHWCA but has elected, pursuant to Section 905(a), to maintain an action at law/admiralty as defendant has failed to secure compensation." (Rec. Doc. 15 at 3). Thus, Section 933 is not applicable in this case because Cheramie seeks only damages, a form of relief not addressed in Section 933. Although Cheramie has arguably given up his "rights to compensation and medical benefits under this chapter," he has not necessarily given up his right to sue his employer for damages based on his employer's liability.
Section 905(a)
The Court finds that the real issue, which Superior Shipyard does not address in its motion for summary judgment, is whether Cheramie has a right to sue his employer for damages in the first place. Section 905(a) provides in pertinent part:
The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee . . . except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee . . . may elect to claim compensation under the chapter, or to maintain an action at law or in admiralty for damages on account of such injury.33 U.S.C. § 905(a) (emphasis added).
Thus, the plain language of the statute indicates that Cheramie cannot sue his employer for damages unless his employer fails to "secure payment of compensation." The record provides no account as to whether Superior Shipyard failed to "secure payment of compensation" as defined by the statute and controlling authority. Conclusion
See Thibodeaux v. J. Ray McDermott Co., C.A.5 (La.) 1960, 276 F.2d 42 (reference to employer who fails to secure payment of compensation relates to specific provision in section 932 of this title which prescribes how and in what manner an employer shall comply with obligation to secure payment of compensation). Essentially, Section 932 indicates that an employer "fails to secure compensation" only when it is uninsured or insolvent.
The Court finds that Section 933(g) is inapplicable because Cheramie is suing Superior Shipyard for damages, not compensation or benefits under the LHWCA.
Further, the Court does not consider whether Plaintiff's action is permissible under Section 905(a), or whether Superior Shipyard has failed to secure payment of compensation because the record is devoid of any reference as to whether Cheramie has either sought or received compensation from Superior Shipyard.
Accordingly,
IT IS ORDERED that Superior Shipyard's motion for summary judgment is DENIED.