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New Jones Act Case from Fifth Circuit - Manderson v. Chet Morrison

New Jones Act case from the Fifth Circuit Court of Appeals.  It is Manderson v. Chet Morrison Contractors, Inc., 2012 U.S. App. LEXIS 18 and can be found here.

The facts don't seem to be controversial:  an engineer on a vessel was hospitalized and received treatment for ulcerative colitis, diabetes and a liver condition.  He did not return to work.  He brought a Jones Act suit, claiming relief under general maritime law, the Jones Act, maintenance and cure and for attorney's fees.

At trial, the claimant was denied relief for his Jones Act and general maritime law claims, but was awarded relief for maintenance and cure and attorney's fees related to that claim.  In awarding attorney's fees, the trial court found that the employer was arbitrary and capricious in failing to pay maintenance and cure payments.

On appeal, the claimant challenged the denial of Jones Act and his maritime law claims, but the appeals court agreed with the trial court's handling of those claims.

As to maintenance and cure, the employer challenged the cure award under the "collateral source rule."  For those non-tort types out there, the collateral source rule bars a tortfeasor from reducing the damages awardable to the plaintiff by referencing sources of compensation (like health insurance) that are independent of the tortfeasor. Therein is the rub:  maintenance and cure is a very, VERY strict requirement for employers of seamen.

So, the court did not allow a reduction for medical payments paid by the claimant's health insurer.  As anyone who has read their health insurer's explanation of benefits (THIS IS NOT A BILL) form, what doctors charge is not what insurance companies pay.  The court in this instance only awarded maintenance and cure damages for what was actually paid to the doctors.  SIDE NOTE:  for those that think it unfair to pay the claimant for injuries paid for by a third party, under Hawaii law, the health insurer has a statutory, contractual and equitable lien against any recoveries that relate to injuries they provided benefits to treat. 

The court rejected the trial court's award of attorney's fees.  In responding to the demand for maintenance and cure, the employer referred the demand to its carrier which investigated the claim.  In two months, the claim was brought.  Based on these facts, the appeals court declined to find the employer's position arbitrary and capricious. 

New Defense Base Act Case Fifth Circuit - Fisher v. Halliburton

New Defense Base Act case from the Fifth Circuit Court of Appeals.  The case is Fisher v. Halliburton, 2012 U.S. App. LEXIS 641 and can be found here.

The facts are straightforward:  several employees of Kellogg Brown & Root were killed in Iraq while driving logistics trucks in Iraq.  Their widows and family members brought state tort claims against their employers.  The employers sought to dismiss the suits citing the remedy and preemption provisions fo the Defense Base Act, 42 U.S.C. 1651.

The Circuit Court walked through the analysis of the applicability of the Defense Base Act, including whether the injury suffered was because of the claimant's employment, whether the Defense Base Act bars intentional torts; and whether claimants can bring fraud claims against their employer, despite the preemptive effect of the Defense Base Act.

Rejecting the widows' claims and arguments, the Fifth Circuit ruled in favor of the Defense Base Act applicability to the injuries suffered by their civilian husbands in Iraq. 

SCOTUS: Stolen Valor Act - brief filed - U.S. v. Alvarez

Update:  the Supreme Court is considering the Ninth Circuit's decision in United States v. Alvarez, relating to the Stolen Valor Act.  My earlier posts on this case are here and here.  Mr. Alvarez just filed his Brief which can be downloaded (Respondent's Brief)

The Question Presented is: 

Section 704(B) of Title 18, United States Code, makes it a crime when anyone “falsely represents himself or herself, *** verbally or in writing, to have been awarded any decoaration or medal authorized by Congress for the Armed Forces of the United States.”  The Question Presented is Whether 18 U.S.C. 704(B) is facially invalid under the Free Speech Clause of the First Amendment.

The other briefs in the case (courtesy of the ABA):

Brief of the United States: here.

Brief for the American Legion in Support of Petitioner:

Brief for the Congressional Medal of Honor Foundation in Support of Petitioner:

Brief for the Legion of Valor of the United States and the Criminal Justice Legal Foundation in Support of Petitioner:

Brief for Professors Eugene Volokh and James Weinstein in Support of Petitioner

Brief for Texas, Alabama, Alaska, Colorado, Florida, Hawaii, Idaho, Indiana, Kansas, Louisiana, Maine, and Michigan in Support of Petitioner

Brief for Veterans of Foreign Wars of the United States; Amvets; Disabled American Veterans; Jewish War Veterans of the United States; Military Order of the World Wars; Vietnam Veterans of America; Military Officers Association of America; Non-Commissioned Officers Association; National Association for Uniformed Services; Association of the United States Army; Association of the United States Navy; Air Force Association; Marine Corps League; Air Force Women Officers Associated; Reserve Officers Association; Army Reserve Association; Fleet Reserve Association; National Guard Association of the United States; Military Order of the Purple Heart; Distinguished Flying Cross Society; Special Forces Association; U.S. Army Ranger Association, Inc.; Flag and General Officers’ Network; West Point Association of Graduates; and Association of Graduates, U.S. Air Force Academy in Support of Petitioner

Intellectual Property Brief of the University of New Hampshire School of Law in Support of Neither Party

 

 

SCOTUS Rules on OCSLA Case - Pacific Operators Offshore, LLP v. Valladolid

News Flash - the Supreme Court issued a decision in Pacific Operations Offshore, LLP v. Valladolid, an Outer Continental Shelf Lands Act/Longshore Act case arising from the Ninth Circuit.  The Supreme Court affirmed the Ninth Circuit's decision, rejecting the approaches adopted by the Third Circuit Court of Appeals and the Fifth Circuit Court of Appeals. 

The decision is here. 

The Question Presented was:

The court granted review for this question presented:

The Outer Continental Shelf Lands Act, 43 U.S.C., §§ 1331-1356 (OCSLA), governs those who work on oil drilling platforms and other fixed structures beyond state maritime boundaries. Workers are eligible for compensation for "any injury occurring as the result of operations conducted on the outer Continental Shelf." 43 U.S.C. § 1333(b) (2006). When an outer continental shelf worker is injured on land, is he (or his heir):

(1) always eligible for compensation, because his employer's operations on the shelf are the but for cause of his injury (as the Third Circuit holds); or

(2) never eligible for compensation, because the Act applies only to injuries occurring on the shelf (as the Fifth Circuit holds); 

(3) sometimes eligible for compensation, because eligibility for benefits depends on the nature and extent of the factual relationship between the injury and the operations on the shelf (as the Ninth Circuit holds)?

The opinion, authored by Justice Thomas, holds that the Ninth Circuit's "substantial nexus" test was the most supportable reading of the statutes at play here.  Justice Scalia concurred, joined by Justice Alito, that favored the adoption of a "proximate cause" test instead of the "substantial nexus" test which he thought unworkable.

Previous posts on case: Ninth Circuit Decision; Cert Petition.

Transcript of oral argument: Transcript - 10-507,

Longshore Act at SCOTUS - Transcript Available - Roberts v. Sea-land Services

Last week, the Supreme Court heard oral arguments in the Roberts v. Sea-Land Services case.  The transcript of oral arguments is here. 

The issue in this case is when an injured longshore worker's "Average Weekly Wage" is to be determined:  at the time of the entitlement to an award of compensation or the actual award of compensation.

The oral arguments required the justices to wade deep into a dense statutory worker compensation regime and address what appears to be an omission in the statute.  Justice Scalia was unimpressed with Congress' statute-writing ability, asking the counsel if this was a "stupid statute."

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 The Question Presented is:

The Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §§ 901-50 (“Longshore Act”), provides generally for compensation for total disability in periodic payments at a rate of two-thirds of the “average weekly wage of the injured employee at the time of the injury,” and for most partial disabilities the same fraction of the difference between that weekly wage and the worker’s residual “wage-earning capacity.” Id. §§ 8, 10, 33 U.S.C. §§ 908, 910. But it has always imposed upper and lower limits on the rate payable as so determined. Section 6(b) of the Act, 33 U.S.C. § 906(b), provides that the compensation rate cannot be more than twice “the applicable national average weekly wage,” as determined for each fiscal year; nor can compensation for total disability be less than the lesser of half the “applicable national average weekly wage” so determined and the worker’s full pre-injury earnings. The question which fiscal year’s limits are the “applicable” ones is addressed by § 6(c):

Determinations under subsection (b)(3) of this section with respect to a [fiscal year]
shall apply to employees or survivors currently receiving compensation for permanent
total disability or death benefits during such period, as well as those newly awarded compensation during such period.

33 U.S.C. § 906(c) (emphasis added). The determinant of the years whose limits are “applicable” under this provision has divided the three courts of appeals that have addressed it. The Court granted certiorari to resolve the question:

Whether the phrase “those newly awarded compensation during such period” in Longshore Act § 6(c) makes the time an award is first entered determinative, or can and should be read to mean “those first entitled to compensation during such period,” regardless of when an award is first entered.

The Merits Reply Brief is here (courtesy of Cockle Law Blog).  I don't have the other merits briefs yet, but will post if I get them.

Earlier posts including the cert petition phase briefs are here and here.

On Capsizing, Captains and Coast Guards: Costa Concordia

Please excuse my absence from this blog.  I've been on active duty with the Coast Guard Reserve in Washington and between snow, sleet, and a full email inbox, I've been busy.

Someone forwarded me this video and, although I don't speak Italian, I do understand the international language of military "get-your-butt-in-gear" - speak.

   

 

This incident reminds me of United States v. Holmes which is a very, very old case.  It stands for the proposition that all mariners owe a special duty to passengers.  That special duty, if breached, can give rise to manslaughter charges.