United States Court of Appeals,
Fifth Circuit.
No. 91–3690.
Ernest D. SHARP, Plaintiff–Appellant,
Wausau Insurance Company, Intervenor–Appellant,
v.
JOHNSON BROTHERS CORPORATION, St. Paul Fire & Marine Insurance Co., and
Centennial Insurance Company, Defendants–Appellees.
Sept. 25, 1992.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before POLITZ, Chief Judge, SMITH and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Ernest D. Sharp, an employee of Johnson Brothers Corporation ("Johnson Brothers"), was
injured while performing bridge repair work and filed suit under the Jones Act, 46 U.S.C.App. § 688,
and a claim under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C.
§ 901 et seq. He eventually reached a settlement with Johnson Brothers and its compensation insurer,
the Wausau Insurance Companies (Wausau), under the LHWCA. Pursuant to the LHWCA, an
administrative law judge ("ALJ") of the Department of Labor (DOL) entered an order approving the
settlement and discharging Johnson Brothers and Wausau upon its payment. The district court then
dismissed Sharp's Jones Act claim, holding that the election of his LHWCA remedy precluded Jones
Act relief. We affirm.
I.
Sharp was a welder/pile driver for Johnson Brothers, helping to replace a railroad drawbridge
over Lake Pontchartrain. He worked abroad a fleet of barges that Johnson Brothers had chartered.
In November 1985, a crane dropped a load of iron on him while he worked on a tugboat in the lake,
injuring his back, knee, and ankle. Johnson Brothers had obtained protection and indemnity insurance
for the tug from St. Paul Fire & Marine Insurance Co. ("St. Paul"), which provided excess coverage
on the barges, which also were insured by Centennial Insurance Company ("Centennial").
Johnson Brothers initiated compensation proceedings, filing a notice with the DOL, which
issued a letter informing Johnson Brothers that Sharp's injury fell "within the purview" of the
LHWCA and that Johnson Brothers had filed a tardy accident report. The DOL also notified Sharp
that his injury "appear[ed] to fall under the jurisdiction of the [LHWCA]." Johnson Brothers then
began to pay Sharp the benefits he would be due under the LHWCA.
Sharp filed a Jones Act suit in November 1986. In 1987 Johnson Brothers terminated his
harbor worker benefits, and Sharp filed an LHWCA claim with the DOL. Johnson and Wausau raised
the defense that Sharp was a Jones Act seaman and thus not eligible for longshore compensation.
After four continuances and a trial, the district court granted a directed verdict against Sharp
on his Jones Act claim in June 1989 on the grounds that the barges were not vessels and that he was
not a seaman. Sharp filed a timely notice of appeal in October 1989.
In September 1989, though, Sharp, Johnson Brothers, and Wausau settled Sharp's LHWCA
claim, agreeing that Sharp would receive $225,000 and in return would release Wausau completely
and would release Johnson Brothers to the extent that it was uninsured by Centennial and St. Paul.
A final release was executed on October 5, 1989, and an ALJ approved the settlement pursuant to
the LHWCA, 33 U.S.C. § 908(i)(1). St. Paul and Centennial assert that they knew nothing of the
settlement at that time.
This court heard oral argument on the appeal of the district court's directed verdict in August
1990, and, inexplicably, no one representing Sharp, Wausau, or Johnson Brothers mentioned the
settlement. In November 1990, we reversed the district court on the ground that a fact question
existed as to whether Sharp worked aboard a fleet of vessels and thus was a seaman. Sharp v.
Johnson Bros. Corp., 917 F.2d 885 (5th Cir.1990).
In August 1991, the district court granted summary judgment against Sharp, holding that,
since as a consequence of the settlement he had elected his remedy as a harbor worker, he had no
right of direct action against either of the indemnity insurers, St. Paul or Centennial, and that Johnson
Brothers had violated its duty of cooperation with its insurers.1
II.
A.
The district court ruled that the settlement the DOL approved constituted an election of
remedies and precluded the filing of a suit based upon general maritime law or the Jones Act. It
based its decision upon Vilanova v. United States, 851 F.2d 1, 4 (1st Cir.1988) (Wisdom, J., sitting
by designation), cert. denied, 488 U.S. 1016, 109 S.Ct. 811, 102 L.Ed.2d 801 (1989), which states
that Congress did not intend to give injured workers two chances to maximize their compensation
award. The district court reasoned that the entry of an order by the ALJ constituted a finding that
the injuries were compensable under the LHWCA and that by seeking, and acquiescing to, the
finding, Sharp is collaterally estopped from contesting LHWCA coverage.
B.
Sharp argues that the district court misunderstood what occurred. He argues that because
there is a "zone of uncertainty" between the Jones Act and the LHWCA, an injured worker may
pursue both remedies simultaneously. See Simms v. Valley Line Co., 709 F.2d 409, 412 (5th
Cir.1983). He also points to a number of commentators who argue that a worker should be able to
accept benefits without losing his Jones Act claim, since the purpose of the compensation and
recovery schemes is to protect the worker during his time of need. See id. (citing treatises). Further,
1
As we conclude that the court did not err in barring Sharp's Jones Act proceeding, we do not
consider the additional bases for the district court's decision.
there is no danger of double recovery, as one recovery is credited against the other.
Sharp further argues that collateral estoppel should not apply, because the issue of whether
he was a seaman or a harbor worker was not litigated; only a consent judgment was entered in his
case. According to Sharp, a consent judgment does not give rise to estoppel, as the issues underlying
the judgment are neither actually litigated nor necessary and essential to the judgment. See Hughes
v. Santa Fe Int'l Corp., 847 F.2d 239 (5th Cir.1988) (finding no issue preclusion). According to
Sharp, the ALJ reviewed the agreement only for fairness, not jurisdiction.
Sharp calls our attention to Southwest Marine v. Gizoni, ––– U.S. ––––, 112 S.Ct. 486, 116
L.Ed.2d 405 (1991), issued shortly before he filed his opening brief. In Gizoni, a rigging foreman
who worked on floating platforms and sometimes did seaman's work was injured. He submitted a
claim for, and received, medical and compensation benefits from Southwest Marine under the
LHWCA and then sued under the Jones Act, alleging that he was a seaman injured by his employer's
negligence. The district court granted summary judgment because he was not a seaman and because
he was a harbor worker precluded by the exclusive remedy provisions of the LHWCA from bringing
his action. The Ninth Circuit reversed, saying Gizoni's status was an issue of fact and that the
LHWCA does not cover seamen, so he might be eligible for a Jones Act award. Gizoni v. Southwest
Marine, 909 F.2d 385 (9th Cir.1990).
The Supreme Court affirmed the court of appeals, reasoning that the two statutory
compensation regimes are mutually exclusive and that a maritime worker is limited to LHWCA
remedies only if no genuine fact issue exists as to whether he is a Jones Act seaman. ––– U.S. ––––,
112 S.Ct. at 492. The Court also stated that it found no indication in the LHWCA that Congress
intended to preclude or stay traditional Jones Act suits in the district courts. Id. at ––––, 112 S.Ct.
at 493.
Most relevantly for the instant appeal, the Court stated that it is "universally accepted" that
an employee who receives voluntary payments under the LHWCA without a formal award is not
barred from subsequently seeking relief under the Jones Act, because "quite obviously" the question
of coverage has never actually been litigated. Id. at ––––, 112 S.Ct. at 493–94. The Court observed
that because the LHWCA provides that any amounts paid under the Jones Act shall be credited
against any liability imposed under the LHWCA, the LHWCA does not comprehend a preclusive
effect. Finally, the court rejected an estoppel argument, since there is no threat of double recovery,
stating that the estoppel argument "would force injured maritime workers to an election of remedies
we do not believe Congress to have intended." Id. at –––– n. 5, 112 S.Ct. at 494 n. 5.
C.
Johnson Brothers, St. Paul, and Centennial distinguish Gizoni on the basis that the Court
states that "voluntary payments under the LHWCA without a formal award" do not bar Jones Act
relief but that here the filed settlement agreement of a compensation claim does constitute a "formal
award." We agree.
It is beyond cavil that merely accepting voluntary payments under the LHWCA without a
formal award does not bar a worker from filing a Jones Act suit. See id. at ––––, 112 S.Ct. at 493;
see also Boatel, Inc. v. Delamore, 379 F.2d 850 (5th Cir.1967). Here, though, Sharp obtained a
settlement agreement and a compensation order issued by the ALJ. We have treated such an
agreement and order as a "formal award." See Newkirk v. Keys Offshore, 782 F.2d 499, 501–02 (5th
Cir.1986); see also Rodriguez v. Compass Shipping Co., 617 F.2d 955, 958–59 (2d Cir.1980), aff'd,
451 U.S. 596, 101 S.Ct. 1945, 68 L.Ed.2d 472 (1981).
Sharp argues that the settlement agreement does not dispose of the issue of coverage. In
Simms, 709 F.2d at 412, cited in Gizoni, we quoted legal scholars who argued that even the payment
of benefits pursuant to a formal award in a contested proceeding might not be fatal to a Jones Act
action if the compensation award was made without a proper adjudication of the claimant's status as
a harbor worker. Id. at 412 n. 5. We never reached that issue, however, as we dismissed the
petitioner's appeal as premature.
It is true that LHWCA coverage was never litigated in an adversarial proceeding. But Sharp
availed himself of the statutory machinery to bargain for an award, and he had the full opportunity
to argue for (or against) coverage. He filed a claim for LHWCA benefits, invoking the jurisdiction
of the DOL. Pursuant to 33 U.S.C. § 908(i)(1), the ALJ considered Sharp's testimony, as well as the
parties' stipulations and their settlement, before issuing its findings of fact and order extinguishing
Johnson Brothers's and Wausau's liability for LHWCA benefits.
Having obtained the order of the ALJ and the aegis of the DOL to ratify and enforce his
settlement, Sharp ensured that his rights were more secure under the agreement than they would have
been if the settlement were considered merely a contract between the parties.2 It follows that where
the ALJ issues a compensation order ratifying a settlement agreement, a "formal award" should be
deemed to have been made under Gizoni, and the injured party no longer may bring a Jones Act suit
for the same injuries.
Our holding is consistent with the purpose of the LHWCA, as outlined in Fontenot v. AWI,
Inc., 923 F.2d 1127 (5th Cir.1991). The LHWCA was not designed to create a mere safety net,
guaranteeing workers a minimum award as they seek greater rewards in court. Rather, it has a benefit
to employers, too, giving them limited and predictable liability in exchange for their giving up their
ability to defend tort actions. Id. at 1132 (quoting Morrison–Knudsen Constr. Co. v. Director, Office
of Worker Compensation Programs, 461 U.S. 624, 636, 103 S.Ct. 2045, 2052, 76 L.Ed.2d 194
(1983)). Permitting a Jones Act proceeding after a formal compensation award here would defeat
2
In notifying the parties of the ALJ's ruling, the Deputy Commissioner of the DOL informed
them that if the employer/insurance carrier failed to pay the compensation award within 10 days, it
would be liable for an additional 20%.
the purpose of the LHWCA, as well as work unfairness, because, as here, employers often have
different insurance carriers for workers' compensation claims and tort claims, so the compensation
insurer, by guaranteeing a minimum award, necessarily would reduce the ability of the tort insurer to
effect a settlement.
Nor is our holding inconsistent with Gizoni. In that case the Court held that an injured
maritime worker did not have to choose between pursuing his potential remedies under the LHWCA
and the Jones Act. There is a difference, though, between saying a plaintiff may pursue only one
remedy and declaring that he may receive only one award.
We agree that Congress did not intend that a worker forfeit his right to pursue one remedy
when he pursues another. Otherwise, a plaintiff might fail to receive a LHWCA award, because the
ALJ considered him a seaman, but be barred from Jones Act relief because he pursued what he
believed were his remedies under the LHWCA.
Nor should an employer be able to avoid Jones Act liability by voluntarily paying LHWCA
benefits that a needy worker cannot but accept while awaiting trial. See Gizoni, ––– U.S. at ––––,
112 S.Ct. at 493; Tipton v. Socony Mobil Oil Co., 375 U.S. 34, 37, 84 S.Ct. 1, 3, 11 L.Ed.2d 4
(1963). But Congress did not intend that the worker be able to pick and choose his remedy based
upon which has conferred upon him a larger award. That is, the LHWCA was not intended to be a
"stepping stone on the way to a jury award." Fontenot, 923 F.2d at 1133.3
The judgment of the district court is AFFIRMED.
3
As a final note, we are distressed by the conduct of the attorneys for Sharp, Johnson Brothers,
and Wausau during the previous appeal. Although we have no basis upon which to ascertain their
motives, we are surprised that the parties failed to bring to our attention the fact that they had
settled at least one aspect of their dispute. We recognize that counsel may legitimately have
believed that the LHWCA settlement was irrelevant to the Jones Act action. Nevertheless, candor
and respect for this court would dictate that the parties inform us of so significant a development
in their litigation.