Oleszczuk v. Calmar Steamship Corp.

D. Maryland

Oleszczuk v. Calmar Steamship Corp.

163 F. Supp. 370, 1958 U.S. Dist. LEXIS 3974

CourtDistrict Court, D. Maryland

DecidedJune 30, 1958

Docket9179

StatusPublished

Cited by17 cases

This text of 163 F. Supp. 370 (Oleszczuk v. Calmar Steamship Corp.) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Oleszczuk v. Calmar Steamship Corp., 163 F. Supp. 370, 1958 U.S. Dist. LEXIS 3974 (D. Md. 1958).

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Opinion

THOMSEN, Chief Judge.

Plaintiff longshoreman has obtained a judgment for $35,000 against defendant shipowner, out of which his counsel has retained $1,614.75 to reimburse Travelers, his employer’s insurance carrier, which had paid that amount to or for plaintiff as compensation and medical expenses under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq., without an award. Plaintiff’s counsel now claims the right to deduct a portion of his fee out of the $1,614.75.

The fact that carrier’s payments were made without an award does not relieve plaintiff of his duty to reimburse carrier out of the recovery from defendant herein. The Etna, 3 Cir., 138 F.2d 37; Fontana v. Pennsylvania R. Co., D.C.S.D. N.Y., 106 F.Supp. 461, affirmed 2 Cir., 205 F.2d 151; Poleski v. Moore-McCormack Lines, D.C.Md., 21 F.R.D. 579. By accepting such payments without an¡ award and then electing to sue a third person in accordance with the provisions-of 33 U.S.C.A. § 933(a), an employe© may control the right of action against, the third person and still retain his right to additional compensation under sec. 933(f). But he and his counsel have no-right to deduct any fee out of that portion of the recovery which must be used to reimburse the carrier. Fontana v. Pennsylvania R. Co., supra. See also Ocean S. S. Co. v. Lumbermen’s Mutual Casualty Co., 2 Cir., 125 F.2d 925, construing the New York statute which is similar to the Longshoremen’s Act. Plaintiff has cited no authority to the contrary. It was necessary to amend th© Maryland statute to give plaintiff and his counsel such a right in a similar situation. Md.Code, 1957 ed., Art. 101, sec. 58, Act of 1947, ch. 608.

The claim of plaintiff and his counsel' is hereby denied. The full amount of $1,614.75 should be paid over to Travelers.

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THOMSEN, Chief Judge.

Plaintiff longshoreman has obtained a judgment for $35,000 against defendant shipowner, out of which his counsel has retained $1,614.75 to reimburse Travelers, his employer’s insurance carrier, which had paid that amount to or for plaintiff as compensation and medical expenses under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq., without an award. Plaintiff’s counsel now claims the right to deduct a portion of his fee out of the $1,614.75.

The fact that carrier’s payments were made without an award does not relieve plaintiff of his duty to reimburse carrier out of the recovery from defendant herein. The Etna, 3 Cir., 138 F.2d 37; Fontana v. Pennsylvania R. Co., D.C.S.D. N.Y., 106 F.Supp. 461, affirmed 2 Cir., 205 F.2d 151; Poleski v. Moore-McCormack Lines, D.C.Md., 21 F.R.D. 579. By accepting such payments without an¡ award and then electing to sue a third person in accordance with the provisions-of 33 U.S.C.A. § 933(a), an employe© may control the right of action against, the third person and still retain his right to additional compensation under sec. 933(f). But he and his counsel have no-right to deduct any fee out of that portion of the recovery which must be used to reimburse the carrier. Fontana v. Pennsylvania R. Co., supra. See also Ocean S. S. Co. v. Lumbermen’s Mutual Casualty Co., 2 Cir., 125 F.2d 925, construing the New York statute which is similar to the Longshoremen’s Act. Plaintiff has cited no authority to the contrary. It was necessary to amend th© Maryland statute to give plaintiff and his counsel such a right in a similar situation. Md.Code, 1957 ed., Art. 101, sec. 58, Act of 1947, ch. 608.

The claim of plaintiff and his counsel' is hereby denied. The full amount of $1,614.75 should be paid over to Travelers.

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163 F. Supp. 370, 1958 U.S. Dist. LEXIS 3974, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oleszczuk-v-calmar-steamship-corp-mdd-1958.

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