Johnson v. Texas Employers Insurance Ass'n

558 S.W.2d 47, 1977 Tex. App. LEXIS 3485

• Court: Court of Appeals of Texas
• Decided: October 20, 1977
• Docket: 8013
• Status: Published

Opinions

DIES, Chief Justice.

Plaintiff below, Tom Johnson, filed suit against Texas Employers’ Insurance Association (T.E.I.A.) in the District Court of Jefferson County for Texas Workmen’s Compensation, alleging an accidental injury while employed by Bethlehem Steel Corp. T.E.I.A. answered by a plea in abatement and to the jurisdiction contending that .plaintiff’s injuries “come -solely under the jurisdiction of the Longshoremen [Longshoremen’s] & Harbor Worker’s [Workers’] .Act” (L.H.W.C.A.), which the court sustained and from which plaintiff brings this appeal.

Plaintiff’s first contention is that his injury was not covered by R.H.W.C.A.

Bethlehem’s Beaumont shipyard is located on an island and is engaged in repairing and constructing marine vessels. Plaintiff was an assistant crane operator or “hooker” in the fabrication shop. Steel is brought into this “fab” shop and then -fashioned into a component part for the vessel under repair or construction. It (the fab shop) is about 75 to 100 feet from navigable water.

After completion, the component is moved out of the fab shop to the vessel by crane and barge.

At the time of his injury, plaintiff’s time was being charged to “No. 1 cross-over” for the new construction of a semisubmersible offshore drilling rig. These vessels float and are moved to a drilling location either by tugs, or some have their own propulsion. The “cross-over car” is part of the superstructure of the vessel. This type of rig has been held a “vessel” as used in 33 U.S.C.A. § 903(a) (1977) hereafter set forth in this opinion. McCarty v. Service Contracting, Inc., 317 F. Supp. 629 (E.D.La.1970); Robichaux v. Kerr McGee Oil Industries, Inc., 317 F.Supp. 587 (W.D.La.1970).

In 1972, Congress added these amendments to the L.H.W.C.A.:

“Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury 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, or building a vessel). [33 U.S.C.A. § 903(a) (1977)]

“The term ‘employee’ means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker . . . . [33 U.S.C.A. § 902(3) (1977)]

“The term ‘employer’ means an employer any of whose employees are employed in maritime employment, in whole or in part, 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, or building a vessel). [33 U.S.C.A. § 902(4) (1977)]”

A very recent opinion of the U.S. Supreme Court, Northeast Marine Terminal Company, Inc. v. Caputo (International Terminal Operating Company, Inc. v. Blundo), 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977), construed these amendments.

Respondent Blundo whose job as a “checker” at a pier for petitioner International was to check and mark cargo being unloaded from a vessel or from a container taken off a vessel, was injured when, while marking cargo, he slipped on some ice on the pier.

Respondent Caputo was a terminal laborer hired by Petitioner Northeast to load and unload barges and trucks and received injuries while loading a dolly loaded with ship’s cargo into a consignee’s truck.

A unanimous Court held that both Blun-do and Caputo satisfied the “status” test of eligibility for compensation under the L.H. W.C.A. since they were both engaged in maritime employment and were therefore “employees” with the meaning of 33 U.S. C.A. § 902(3) at the time of their injuries. The injuries of both respondents occurred on a “situs” covered by the Act.

It is obvious that under this decision our plaintiff satisfied the “status” and “si-tus” requirement of the Act and was an “employee” within the meaning of 33 U.S. C.A. § 902(3) at the time of his injuries. This point is overruled.

Plaintiff’s next and last point is that coverage under the Federal Act is not exclusive. 33 U.S.C.A. § 905(a) of the Act provides:

“(a) The liability of an employer prescribed in Section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer.”

This section says that if an employer sees that an injured employee secures payment of compensation as required by this Act, then the employer is protected from tort liability to such employee. This is the typical provision in State Compensation Acts. There is no indication in this section of the Act that Federal coverage is exclusive of any other.

We have been cited to but one case handed down since the 1972 Amendments on this subject of exclusivity, Poche v. Avondale Shipyards, Inc., 339 So.2d 1212 (La.1976). This case held the Federal Act was not exclusive.

The decisions hold that Federal regulation of a field of commerce should not be deemed to divest state regulatory power unless (1) the nature of the regulated matter permits no other conclusion or (2) that the Congress has unmistakenly so ordained. Askew v. American Waterways Operators, 411 U.S. 325, 93 S.Ct. 1950, 36 L.Ed.2d 280 (1973); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963).

In Kelly v. Washington, 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3 (1937), the court stated:

“The principle is thoroughly established that the exercise by the State of its police power, which would be valid if not superseded by Federal action, is superseded only where the repugnance or conflict [between the State and Federal laws] is so ‘direct and positive’ that the two acts cannot ‘be reconciled or consistently stand together.’ ” 302 U.S. at 10, 58 S.Ct. at 92 (citations omitted).

Even though, through amendments and case law, the coverage of the Federal Act has been extended, at the same time virtually all injuries on the water have also been held to be covered by the state acts. Bas-kin v. Industrial Accident Commission of the State of California, 338 U.S. 854, 70 S.Ct. 99, 94 L.Ed. 523 (1949); Bethlehem Steel Co. v. Moore, 335 U.S. 874, 69 S.Ct. 239, 93 L.Ed. 417 (1948); Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272, 79 S.Ct. 266, 3 L.Ed.2d 292 (1959); Richard v. Lake Charles Stevedores, 95 So.2d 830 (La. App.1957), cert. denied 355 U.S. 952, 78 S.Ct. 535, 2 L.Ed.2d 529 (1958); De Graw v. Todd Shipyards Co., 134 N.J.L. 315, 47 A.2d 338 (1946), cert. denied 329 U.S. 759, 67 S.Ct. 113, 91 L.Ed. 655 (1946); Behrle v. London Guarantee & Accident Co., 76 R.I. 106, 68 A .2d 63 (1949), cert. denied 339 U.S. 928, 70 S.Ct. 627, 94 L.Ed. 1349 (1950).

The fact that Congress did not in this Act preclude operation of State Compensation Law is persuasive. It (The Congress) certainly has expressly done so in other acts. See the Defense Base Act, Sect. 1(c), 42 U.S.C. Sect. 1651(c); Sect. 2(c) of the Non-Appropriated Fund Instrumentalities Act, 5 U.S.C., Sect. 8173; War Hazards Compensation Act, Sect. 105(a), 42 U.S.C. Sect. 1705(a). Surely when Congress enacted the 1972 Amendments above set out, if it had wished to completely divest the State Acts of jurisdiction, it would have so expressly stated.

Before the 1972 Amendments, the State Compensation Acts and the L.H.W.C.A. were concurrent in their jurisdiction. Cal-beck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962). See also, Davis v. Department of Labor & Industries of State of Washington, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942), and Avondale Marine Ways, Inc. v. Henderson, 346 U.S. 366, 74 S.Ct. 100, 98 L.Ed. 77 (1953). Of this latter case, the court in Calbeck, supra, said at 370 U.S. 129, 82 S.Ct. 1204:

“Since a marine railway was considered to be a ‘dry dock’ the injury satisfied § 3(a)’s requirement that it occur ‘upon navigable waters’ At the same time, since the injury did, in a physical sense, occur on land, there is little doubt that a state compensation act could validly have been applied to it. See State Industrial Com. v. Nordenholt Corp., 259 U.S. 268, 42 S.Ct. 473, 66 L.Ed. 933, 25 A.L.R. 1013, 21 N.C.C.A. 862.” (Emphasis supplied)

In Calbeck, supra, the contention was made that acceptance of compensation under the Louisiana statute was an election of remedies which bars prosecution of a claim under L.H.W.C.A. The court rejected this contention and expressly approved the Deputy Commissioner’s (under L.H.W.C.A.) act m crediting the full amount of all payments under the Louisiana act against the L.H.W. C.A. award to make impossible “impermissible double recovery” (370 U.S. 131, 63 S.Ct. 225).

The purpose of the 1972 Amendments was to extend the coverage, and the uniformity desired was to cover qualified employees beyond the water’s edge. See Ca-puto, supra.

The reason for the change brought about by the amendments is said by Professor Arthur Larson to be money.1

By 1971, there were eleven maritime states with higher benefits than the L.H.W. C.A. “The traffic was made up mostly of claimants trying to avoid the Federal act and claim under a State act.” (Larson at 290). In 1972, Congress more than doubled the benefits under L.H.W.C.A.; by 1975, only Alaska had higher benefits. Extension of the coverage by the 1972 Amendments was invited by the U.S. Supreme Court in Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971), saying: “. . . if denying federal remedies to longshoremen injured on land is intolerable, Congress has ample power under Arts. I and III of the Constitution to enact a suitable solution” (404 U.S. at 216, 92 S.Ct. at 426). “. . . the denial indeed did become intolerable when the federal benefits were more than doubled.” (Larson, supra, at 292).

In Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (9th Cir. 1975), cert. denied, 429 U.S. 868, 97 S.Ct. 179, 50 L.Ed.2d 148 (1976), quoted in Larson, supra, at 294, the court stated:

“We join in the observation of the Law Judge that the intent of Congress in extending the Act was not to ‘open the doors’ to all employees, but to minimize the adverse effect of a shoreside location or situs when a maritime employee is injured.” (Id. at 961)

Professor Larson concludes his article with these words at 342-344:

“There remains the question: What if anything did the 1972 Amendments do to change the law as to ‘twilight zone’ and concurrent jurisdiction doctrines? The answer seems to be: factually, a great deal; legally, not much. . . . When the concurrent or successive jurisdiction question takes the form of a state award followed by a federal award, there would thus be no problem. But suppose a borderline worker in Alaska wants to escape from the Longshoremen’s Act into the higher paying Alaska act. The case might first arise as a twilight zone example. For reasons just sketched, a holding below in favor of state coverage might well be left undisturbed. But suppose a Longshoremen’s Act award had already been made. The main ground of the leading pre-1972 case allowing supplemental state compensation, Hansen v. Perth Amboy Dry Dock Co.,2 was not the ‘absence of state power clause’ but the emergence of the ‘valid state interest’ test. This main ground remained unaffected by the 1972 Amendments. Nor did the addition of the ‘maritime employment’ test, as just noted, raise any new constitutional problems.

“As a matter of federal preemption, the courts would probably uphold the application of the Alaska act as merely supplementing the federal act, not conflicting with it. The purpose of the federal act was to guarantee a federal remedy of a certain minimum size. .

“To invoke the supremacy clause, federal interest should be found ‘so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.’

“In view of the background of pre-1972 concurrent and supplementary coverage cases, in view of the creation by Congress of large new areas of uncertainty of coverage putting workers to the possible hazard of wrong initial choices, and in view of the failure of Congress by express language in the amendments to preempt the field as against any possible competing state act, it seems likely that supplementary awards would be upheld even when the federal award had come first.” (Emphasis added)

In Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947), (quoted on p. 344 of Larson) the court said:

“Congress legislated here in a field which the states have traditionally occupied [citation omitted.] So we start with the assumption that the . . . powers of the states were not meant to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”

That this attitude still prevails in the U.S. Supreme Court is attested by these words handed down by the Court since the 1972 Amendments:³

“While Congress has extended admiralty jurisdiction beyond the boundaries contemplated by the Framers, it hardly follows from the constitutionality of that extension that we must sanctify the federal courts with exclusive jurisdiction to the exclusion of powers traditionally within the competence of the States.” (411 U.S. 341, 93 S.Ct. 1600.)

Therefore, since jurisdiction was not exclusive before the 1972 Amendments, we see nothing in the Amendments to justify or support T.E.I.A.’s contention that they (the 1972 Amendments) have divested the Texas Act of jurisdiction.

As to the argument that concurrent jurisdiction will result in double recovery, when the State award comes first Calbeck, supra, has removed that fear. And, we here and now hold that should plaintiff below, Tom Johnson, recover any award under the Texas Act, the entire amount awarded under L.H.W.C.A. shall be deducted from that award.

That Bethlehem is a self-insurer under L.H.W.C.A. and pays premiums to T.E.I.A. under the State Act presents no real problem, for under either scheme the employer pays the bill, depending on its injury record.

Appellant’s second point is sustained; the order of the trial court is reversed, and the case is remanded for trial.

REVERSED and REMANDED.

1 . “The Conflict Problem Between the Longshoremen’s Act and State Workmen’s Compensation Acts Under the 1972 Amendments,” 14 Hous.L.Rev. 287 (1977).

2 . 48 N.J. 389, 226 A.2d 4 (1967).

3 . Askew v. American Waterways Operators, Inc., 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973).