Opinion
Civil No.: 00-2142-K(POR)
January 26, 2001
ERIC A. DUPREE, SCOTT R. MACINNES, DUPREE GALICHON ASSOCIATES, San Diego, CA, for Employer/Carrier.
PROPOSED COMPLAINT IN INTERVENTION PURSUANT TO LONGSHORE AND HARBOR WORKERS' COMPENSATION ACT ( 33 U.S.C. 933)
NOW COMES STIRLING COOKE INSURANCE SERVICES, INC., and respectfully shows the Court:
1. That Intervenor is an insurance company authorized to do business within the State of California, and has an office and place of business in Los Angeles County, California.
2. Intervenor wrote a policy of insurance insuring Delphius, of San Diego, California against claims under the Longshore and Harbor Workers' Compensation Act, which policy was in effect on or about October 25, 1999.
3. On or about October 25, 1999, the plaintiff in the above styled case, Mr. Michael Hess, was injured aboard the USS BONHOMME RICHARD, which was then afloat in the San Diego Harbor, San Diego, California.
4. That at the time of his injury Mr. Michael Hess was in the employ of intervenor's name insured, Delphius Engineering, and was working as a pipefitter covered by the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq.
5. As a result of said injury, plaintiff asserted a claim under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq.
6. Plaintiff's injuries for which he is claiming damages against the United States are the same injuries that Stirling Cooke has paid benefits for pursuant to the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq.
6. As required by said Lonshore Act, Intervenor commenced the payment of compensation and medical benefits, and as of January 24, 2001 Intervener has paid plaintiff the sum of $30,652.41 as compensation and as of January 24, 2001, Intervenor had paid the sum of $15,824.72 medical expenses for the benefit of said plaintiff.
7. That by reason of such payments, Intervenor has become subrogated under §§ 33(c) and (h) of said Longshore Act against any third party who is or may be liable to the plaintiff on account of his injuries, including the defendant in the above styled case; and intervenor has a lien against any recovery of the plaintiff against the defendant to the extent of intervenor's payments under said Act.
8. Intervenor further shows that it is continuing to pay compensation to plaintiff and medical benefits on his behalf and intervener reserves the right to amend this complaint in intervention to include all further payments arising after this intervention.
WHEREFORE, Intervenor prays:
(a) That it be adjudged that Intervenor has a lien against any recovery by plaintiff in this case either by way of judgment or settlement to the extent of all payments for compensation and medicals; and
(b) That Intervenor have such other and further relief as to the Court deems proper.