Opinion
James C. Rinaman, Jr., Marks, Gray, Yates, Conroy & Gibbs, Jacksonville, Fla., J. Compton French, Daytona Beach, Fla., for plaintiffs.
Arthur M. Ossinsky, Daytona Beach, Fla., for Virginia Littleton Rose Mauntz, Barbara Lantz Bilbray, Karen Rae Churchill and William Carpenter Rose.
Edward F. Boardman, U.S. Atty., Jacksonville, Fla., for defendant.
SUMMARY FINAL JUDGMENT
CHARLES R. SCOTT, District Judge.
Upon consideration of the motion for summary judgment filed herein by defendant deputy commissioner, William M. O'Keeffe, and of the cross motion for summary judgment filed by plaintiffs, Pan American World Airways, Incorporated, and The Travelers Insurance Company, following due notice of the filing of such motions, and upon consideration of the briefs and the oral argument of counsel for the parties in this review proceeding, the Court finds as follows:
(a) The deputy commissioner, subsequent to affirmance by the Court of Appeals for this Circuit of the deputy commissioner's award of compensation benefits to the surviving widow and children of the deceased employee in this case, properly found in supplementary proceedings that the survivors were entitled to interest on compensation due under the award but unpaid. Amis v. Smith, 41 U.S. (16 Pet.) 303, 311, 10 L.Ed. 973 (1842); (b) The deputy commissioner properly found further in the supplementary proceedings referred to above that the survivors were entitled to twenty percent additional compensation under the provisions of Section 14(f) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 914(f), on benefits awarded but unpaid for more than 10 days after becoming due with no interlocutory injunction having been obtained in the interval (Section 21(b) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 921(b); Zeller v. Associated Indemnity Corporation, 92 F.2d 453 (C.A. 9, 1937); Arrow Stevedore Corporation v. Pillsbury, 88 F.2d 446 (C.A. 9, 1937); Twine v. Locke, 68 F.2d 712 (C.A. 2, 1934); Candado Stevedoring Corporation v. Lowe, 85 F.2d 119, 121 (C.A. 2, 1936), cert. denied 299 U.S. 588, 57 S.Ct. 115, 81 L.Ed. 433; Hart v. Perkins, 258 N.Y. 61, 179 N.E. 259, 261 (1932); Parker v. Brinson Const. Co., 78 So.2d 873 (Fla. 1955); A.D.H. Building Contractors v. Steele, 171 So.2d 184 (Fla.App.1965); Andrews v. Strecker Body Builders, 92 So.2d 521 (FlA. 1957); Rutherford v. Seven-Up Bottling Company, 83 So.2d 269 (FlA. 1955)), and on all awarded benefits which remained unpaid for more than 10 days after the deputy commissioner's award was sustained on appeal. Potts v. Flax, 313 F.2d 284, 290 n.6 (C.A. 5, 1963); Hunt v. Seeley, 115 F.2d 205, 207 (C.A. 5, 1940); Thornton v. Carter, 109 F.2d 316, 321 (C.A. 8, 1940); Federal Home Loan Bank of San Francisco v. Hall, 225 F.2d 349 (C.A. 9, 1955); United States v. Eisner, 323 F.2d 38 (C.A. 6, 1963); Harris v. Briscoe, 94 U.S.App.D.C. 92, 212 F.2d 619 (1954); Higgins, Inc. v. Donovan, 249 F.Supp. 941 (D.C.LA. 1966).
(c) The deputy commissioner, in the aforesaid supplementary proceedings, properly allowed payment of attorney's fees to be made by the survivors out of the 20 percent additional compensation and the interest awarded them. Section 28(a) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.§ 928(a).
It is therefore ordered and adjudged:
1. That the defendant deputy commissioner's motion for summary judgment be, and the same hereby is, granted.
2. That the motion of the plaintiffs for summary judgment be, and the same hereby is, denied.
3. That the within action be, and the same hereby is, dismissed with prejudice.