Opinion
Civil No. 02-2483 (PG).
December 9, 2003
REPORT AND RECOMMENDATION
Defendant's Motion to Dismiss and plaintiff's Opposition in this Federal Torts Claim action ( FTCA) were referred to this Magistrate (D.E. #13, 12). The claim is predicated on a vehicular accident that occurred in Roosevelt Roads Navy Base to subcontractor's employees within the scope of their employment. 28 U.S.C.A. § 2671, et seq. Claims have also been filed under the Longshore and Harbor Worker's Compensation Act and the Defense Base Act. 33 U.S.C. § 901 and 42 U.S.C.A. § 1651, respectively.
Defendants submits its request for dismissal as a statutory employer of plaintiffs who were injured by a vehicle owned, operated, and driven under the control of a member of the United States Armed Forces within the scope of his duties and/or employment. Plaintiffs were employees of ITT Federal Services Corporation ( ITT), an independent civilian contractor retained by the U.S. Department of the Navy through the Department of Defense. This employer had obtained insurance from ACE USA for workers' compensation benefits and medical expenses which covered plaintiffs while in the course of their employment. Said employer had not covered its employees under the Puerto Rico Workers' Compensation Act. Neither the federal government nor the Armed Forces ( defendant) had obtained workers' compensation insurance for employees of ITT.
Defendant has affirmatively claimed that plaintiffs are precluded from filing a claim for their job-related injuries against all the employers in the contract chain, that is, as employees of a federal government contractor. This position is fostered under the auspice of the Longshore and Harbor's Worker's Compensation Act ( LHWCA) and the Defense Base Act (DBA), but should be unavailable to defendant in this case under the Puerto Rico Workers' Compensation Act ( PRWCA) definition of statutory employer since neither plaintiffs' direct nor defendant, as an alleged statutory employer, had obtained coverage under state law. See Cintrón Rodríguez v. United States, 995 F. Supp. 238 (DPR 1998). Defendant has not submitted herein that it required its subcontractor in their contract to take out insurance policy under the PRWCA and it is undisputed that no such coverage was obtained.
The concept of statutory employee was fashioned by the Puerto Rico courts to extend immunity to certain persons who were not technically employers but were thought to deserve immunity from tort liability because of their close involvement in the employer-employee relationship. Vega-Mena v. United States, 990 F.2d 684, 686 (1st Cir. 1993).
Defendant has also submitted that since the Defense Base Act ( DBA) is a federal worker's compensation statute which incorporates the provisions of the LHWCA; it applies to Puerto Rico; and it should be grounds for uniformity and certainty in the compensation available for injured employees on military bases outside the continental United States. However, case law submitted by defendant was construed in regard to immunity for an injured worker's direct employer under the LHWCA and the DBA.Dávila Pérez v. Lockheed Martin Corporation, 202 F.3d 464 (1st Cir. 2000); Colón Colón v. United States Department of Navy, 223 F. Supp.2d 368 (D.P.R. 2002). To the contrary, similar to the instant action, in Rivera Carmona v. United States, 858 F. Supp. 295 (D.P.R. 1994), an employee of a government contractor sued the United States under the FTCA, as a responsible third party, for injuries sustained while working at a naval station in Puerto Rico. It was therein construed that under § 905 of the LHWCA "a contractor shall be deemed the employer of a subcontractor's employees only if the subcontractor fails to secure the payment of compensation as required by section 904 of this title". (Emphasis supplied.)
Congress enacted the LHWCA in 1927 to provide workers' compensation coverage to certain maritime employees. Congress subsequently enacted the DBA in 1941 to extend the workers' compensation coverage of the LHWCA to employees working on air, military, and naval bases outside the continental United States. See 42 U.S.C. § 1651(a). See also ITT Base Services v. Hickson, 155 F.3d 1272, 1274, 1275 (11th Cir. 1998). The LHWCA always applies in DBA cases unless its provisions are specifically modified by the DBA.
The compensation protocol provided by the LHWCA governs a claim under the DBA except to the extent the DBA specifically modifies a provision of the LHWCA. See Pearce v. Director, Office of Workers' Compensation Programs, 603 F.2d 763, 765 (9th Cir. 1979). The DBA itself contains no substantive provisions: the entirety of the Act contains some procedural and definitional provisions specifically tailored to DBA claimants, but contains no provisions dealing with the substance of a claim under the DBA. See AFIA/CIGNA Worldwide v. Felkner, 930 F.2d 1111-1113 (5th Cir. 1991) cert. denied, 502 U.S. 906, 112 S. Ct. 297 (1991).
Since the plaintiffs' direct employee did not fail to secure workers' compensation under the LHWCA and the defendant herein did not actually secure such payment, it would not be entitled to immunity as a statutory employer.
The defendant's motion to dismiss should BE DENIED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994);United States v. Valencia, 792 F.2d 4 (1st Cir. 1986). See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co, 840 F.2d 985, 991 (1st Cir. 1988) ("Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round").
IT IS SO RECOMMENDED.