Global Management Enterprises, LLC v. Commerce & Industry Insurance

574 F. App'x 333
Court of Appeals for the Fifth Circuit·Decided June 23, 2014·No. No. 13-31249·Published·Cited by 2 cases

Opinion

PER CURIAM: *

Before the court is a dispute as to whether an employee’s injury is covered by a workers’ compensation policy that excludes work “subject to” the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 900, et seq. The district court entered summary judgment in favor of the workers’ compensation carrier. We reverse.

The material facts are not in dispute. Global Management Enterprise (“Global”) is a temporary employment agency that provides short-term workers for various construction and industrial purposes. Commerce and Industry Insurance Company (d/b/a “Chartis”) is Global’s workers’ compensation insurance carrier. In the months following the Deepwater Horizon oil spill, Global hired a number of workers to assist with clean-up efforts in and around the Gulf of Mexico. On August 21, 2010, Global employee Librado De La Cruz was allegedly injured while lifting a bag of oil-laden sand that would later be loaded onto a truck and transferred to a vessel for removal. It is undisputed that De La Cruz spent up to two hours actively loading and unloading the vessel at the pier, and six or seven hours cleaning the [335] beaches. At the time of the incident, De La Cruz was working on a beach located a few feet from Gulf waters and around a half-mile from the pier at which the vessel was docked.

After the incident, Chartis accepted De La Cruz’s workers’ compensation claim and began payment of benefits. Unbeknownst to Chartris, De La Cruz also applied for benefits under the Longshoreman and Harbor Workers Compensation Act (“the LHWCA” or “the Act”). He ultimately withdrew that application such that the question of coverage was never adjudicated by the federal agency. Nevertheless, Chartis ceased workers’ compensation payments, citing the policy’s longshoreman exclusion.1 Following the cessation of payments, Global filed the present action against Chartis, alleging breach of contract, negligence, and bad faith. Chartis moved for summary judgment on all claims, arguing, inter alia, that the injury is subject to the policy exclusion. Finding no dispute as to the issue, the district court granted summary judgment on all claims. On appeal, this court vacated judgment and ordered the district court to reconsider the motion in light of a new precedent, New Orleans Depot Services v. Worker’s Compensation Programs, 718 F.3d 384 (5th Cir.2013) (en banc). After reviewing the case in accordance with our instructions, the district court again entered summary judgment in favor of Char-tis. Global filed timely appeal.

We review summary judgment de novo, applying the same standard as the district court. Kimberly-Clark Corp. v. Factory Mut. Ins. Co., 566 F.3d 541, 544 (5th Cir.2009). Summary judgment is appropriate where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to material fact.” Fed. R. Civ. P. 56(a).

The sole issue on appeal is whether De La Cruz sustained the alleged injury at a location covered by the Act.2 Benefits under the LHWCA extend only to “injuries] occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel).” 33 U.S.C. § 903(a). Accordingly, for a worksite to be reached by the LHWCA, it must (1) adjoin navigable waters; and (2) customarily be used by an employer to facilitate one of the listed maritime activities. Depot, 718 F.3d at 389 (citation omitted). There is no dispute that the incident occurred at a site adjoining navigable waters — De La Cruz was working at a beach on an island in the Gulf of Mexico. The only question is whether the beach is a location customarily used by an employer for a covered activity. We conclude that it is not.

The beach upon which De La Cruz was allegedly injured is not a site customarily used for longshore work. There were no structures on the beach, which was located on a remote island known only as Gl. Chartis provides no evidence that the [336] beach had ever been used by longshoremen, and Global’s crews did not work in any longshore capacity there. Instead, they gathered spill-related debris and refuse into bags. The bags were thrown into a designated area and were later loaded onto a truck for daily transport to a vessel for removal. Per uncontested testimony, the only other activity that took place on the beach was the daily erection of the crew’s lunch tent. So the injury was not sustained at a location customarily used for “loading, unloading, repairing, dismantling, or building a vessel,” as required for the statute to apply. 33 U.S.C. § 903(a).

Chartis nevertheless argues that the beach’s customary use should be determined in light of the crew’s daily use of the pier at which the working vessel was docked. Every evening the crew would drive back to this pier and assist the sailors in loading the vessel. Chartis suggests, then, that the beach and the pier together serve as a single area customarily used for longshore activities. We recognize that a single longshore facility may comprise several distinct areas. See generally Coastal Prod. Servs. Inc. v. Hudson, 555 F.3d 426 (5th Cir.2009). When an injury occurs in a distinct part of a larger facility, the situs is not evaluated by reference to fences or labels alone. Id. at 434 n. 26. Instead, this court considers whether the site of the injury “is within a contiguous shipbuilding [i.e., longshore] area which adjoins the water.” Ala. Dry Dock & Shipbuilding Co. v. Kininess, 554 F.2d 176, 178 (5th Cir.1977). If so, the accident site comes within the purview of the Act. For example, a longshoreman is not exempt from coverage just because he sustains injury in a shipyard’s back lot instead of in the area used exclusively for shipbuilding or loading. Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Global Management Enterprises, LLC v. Commerce & Industry Insurance, 574 F. App'x 333 (5th Cir. 2014).

574 F. App'x 333 (Global Management Enterprises, LLC v. Commerce & Industry Insurance) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related