Reyes v. Delta Dallas Alpha Corp.

POOLER, Circuit Judge,

dissenting:

I respectfully dissent and would affirm the decision of the district court in its entirety. Based on the undisputed evidence and drawing all reasonable inferences in favor of the non-moving plaintiff, Jose B. Reyes, the district court correctly found that plaintiff waived his Jones Act remedies against employer Delta Dallas Alpha Corp. as a matter of law.

The majority relies in part on the Supreme Court’s opinion in Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 , 112 S.Ct. 486 , 116 L.Ed.2d 405 (1991), to find that Reyes did not waive his Jones Act claims as a matter of federal law because while Reyes accepted voluntary payments from the New York Workers’ Compensation Board, he never received a formal award. This reliance is misplaced. As the majority noted, Gizoni dealt with the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), a different compensation scheme. The section upon which the majority relies did not hold that no Jones Act waiver is effected until a claimant receives a formal award. Rather, the Supreme Court’s holding is more limited. Gizoni merely states that where a claimant’s seaman status B and Jones Act eligibility-remains an open issue, his receipt of voluntary payments under the LHWCA is not a waiver, particularly because the LHWCA “does not comprehend such a preclusive effect” and specifically contains an offset provision in the event that a claimant receives Jones Act recoveries. Gizoni, 502 U.S. at 91-92 , 112 S.Ct. 486 . The state workers compensation scheme does not contain a similar offset provision but instead contains language regarding the pre-clusive effect of receiving benefits. See N.Y. Work. Comp. L. § 113 (McKinney 1998).

The majority disregards federal precedent directly on point. The district court correctly relied on Heagney v. Brooklyn Eastern Dist. Terminal, 190 F.2d 976, 977-78 (2d Cir.1951). In that case, an injured seaman filed a workers compensation claim, had counsel appear on his behalf at four out of six benefits hearings, and accepted benefits. We held on these facts that:

[i]f there is ever to be any settlement of legal claims we feel that it must be in a case such as this where a claimant before an administrative board is adequately represented by counsel over a long period, during which the rights, potential and actual, of the client are perfectly obvious to anyone with the slightest legal training, and where there is no suggestion of fraud or concealment from the lawyer on the part of the employer.

Id. at 978 . The facts of Heagney , in which the claimant made no Jones Act claim until *632 two years after his injury, are strikingly similar to the undisputed facts that Reyes presents because (1) Reyes litigated his workers compensation claim with the assistance of counsel over a period of two years; (2) Reyes did not file his federal claim until three years after making a workers compensation claim and two years after he began receiving benefits; and (3) Reyes did not notify his employer of his intent to sue under federal law until two years after making a workers compensation claim and one year after he began receiving benefits.

I disagree with the majority’s notion that subsequent decisions of the New York State Court of Appeals superseded Heag-ney. If anything, these decisions reinforced Heagney because they employed the same analysis. The New York Court of Appeals held that “unqualified acceptance of compensation payments over a period of years may constitute a waiver of Federal rights and remedies [but] not every award and acceptance of compensation benefits prevent a claimant from pursuing his Federal rights.” Dacus v. Spin-Nes Realty & Const. Co., 22 N.Y.2d 427, 430-31 , 293 N.Y.S.2d 83 , 239 N.E.2d 718 (1968). See also Pedersen v. Manitowoc Co., 25 N.Y.2d 412, 417 , 306 N.Y.S.2d 903 , 255 N.E.2d 146 (1969). In each case, the Court of Appeals found that the waiver question raised issues of fact because the injured seamen accepted benefits but also provided their employers with some notice of their federal claims within months of their accidents. Pedersen, 25 N.Y.2d at 417 , 306 N.Y.S.2d 903 , 255 N.E.2d 146 ; Dacus, 22 N.Y.2d at 431 , 293 N.Y.S.2d 83 , 239 N.E.2d 718 . The only difference between the New York State cases and He-agney were the facts, which of course resulted in different outcomes. But the standard remained the same. It is this standard that the district court applied correctly to hold that Reyes waived his Jones Act claims as a matter of law.

I also would affirm the decision of the district court dismissing Reyes’ negligence and unseaworthiness causes of action. The majority opinion declines to acknowledge the deposition testimony of plaintiff himself, who stated that deckhand Tomas Guity could not have done anything to prevent the accident, that the ship’s captain could not have prevented the accident because he did not see Reyes below deck, and that the carpet on the stairs was “fine.” Thjs testimony precludes recovery both for an unseaworthy condition based on the assignment of crew and common law negligence. I am unpersuaded by the majority’s attempt to salvage Reyes’ claims in footnote 2 of its opinion based on the fact that Guity was not assigned to the task of helping Reyes. Plaintiffs own testimony clearly shows his belief that the accident would have occurred whether Guity or one of Reyes’ coworkers was present.

For the foregoing reasons, I respectfully dissent from the majority opinion.