Petitioners Reply Brief — Brown v. Brown

[ Office - Supreme Court,

Docket No. 83-1689 JUN 6 mage

SEER? STEVAS,

CLERK

FILED

In the Supreme Court of the United States

OCTOBER TERM 1983

KAY J. BROWN, Administratrix of the

Estate of Edward Carol Brown, deceased,

KAY J. BROWN, Individually,

RONNIE EDWARD BROWN, an infant Fy ‘is

Guardian ad litem, Wiley G. Gary, and

TIMOTHY EARL HOGGARD,

Petitioners,

V.

PATRICIA ANN BROWN

and

ALLIED TOWING CORPORATION,

Respondents.

PETITIONERS’ REPLY BRIEF

Alan P. Owens

SMITH & OWENS

250 Monticello Arcade

Post Office Box 3646

Norfolk, Virginia 23514

(804) 622-1621

Counsel for Petitioners

see ees

TABLE OF CONTENTS

TABLE OF CASES

I. CORRECTION OF ERRONEOUS

FACTUAL STATEMENTS

II. THE ADMINISTRATRIX AS

PERSONAL REPRESENTATIVE

IS THE PROPER PARTY CHARGED

WITH MAINTAINING ALL ASPECTS

OF THIS MARITIME WRONGFUL

DEATH CLAIM

III. SUPPLEMENTAL LAW

ROSEMARY MCKENNEY STANDBRIDGE,

INDIVIDUALLY, ETC

JOHN DALE TAYLOR,

CIVIL ACTION NO.

CONCL USION

CERTIFICATE OF SERVICE

+, ET AL V.

ET AL.

83-0609-R

ii

10

ll

15

17

TABLE OF CASES

Allied Towing Corporation v.

Tatem, 580 F.2d 702

(4th Cir. 1978) 4

American Railroad Co. of

Porto Rico yv. Birch,

224 U.S. 547 8

Briggs v. Pennsylvania R. Co.,

153 F2d 841, 84 (2nd Cir.

1946) 9

Complaint of Allied Towing

Corporation, 416 F.Supp. 1207

(D.C.Va. 1976) 3

Complaint of Cosmopolitan Ship Co.

S.A., 453 F.Supp 265 (SD

NY 1978) 9

Ford v. Wooten, 681 F.2d 712,

llth Cir. 1982), cert den

103 S.Ct. 1187, 51 LW

3611 (1983) 11

Foremost Insurance Co. v.

Richardson, 457 U.S. 668,

73 L.Ed2d 300, reh. den.

74 L.Ed2d 160 (1982) 10,15

Futch v. Midland Enterprises,

Inc., 471 F2d 1195 (Sth

Cir. 1973) 8

Green v. Ross, 338 F.Supp 365

(DC SD Fla 1972) aff'd.

481 F.2d 102, cert den 414

U.S. 1068 8

ii

Griffith v. Wheeling Pittsburgh

Steel Corp., 521 F.2d 3l

(1975) cert den. 423 U.S.

1054 5

Ivy v. Security Barge Lines,

Inc., 606 F.2d 254 (5th

Cir. 1979) cert de4n 446

U.S. 956 (1980) 8

Mobil Oil Corp. v. Higginbotham

Administratrix, 436 U.S.

618 (1977) 7

The Pan Two, 26 F.Supp. 990, 993

(DC MD 1939) 10

Standbridge, Indiv., etc. v.

John Dale Taylor, et al.,

Civil Action 83-0609-R

(EDVA) (unreported ) ll

Statutes

33 U.S.C., Section 901 et seq.

Longshoreman's and Harbor

Workers' Compensation

Act 2,3,4,7,15

33 U.S.C., Section 905

Longshoreman's and Harbor

Workers' Compensation Act 6

45 U.S.C., Section 51

Federal Employees Liability

Act 8

46 U.S.C. Section 688

The Jones Act 7

46 U.S.C., Section 761, et seq.

Death on the High

Seas Act 7

iii

DOCKET NO. 83-1689

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM 1983

KAY J. BROWN, Administratrix of the

Estate of Edward Carol Brown, deceased,

KAY J. BROWN, Individually,

RONNIE EDWARD BROWN, an infant by his

Guardian ad litem, Wiley G. Gary, and

TIMOTHY EARL HOGGARD,

Petitioners

Vv.

PATRICIA ANN BROWN

and

ALLIED TOWING CORPORATION,

Respondents

PETITIONERS' REPLY BRIEF

I.

CORRECTION OF ERRONEOUS

FACTUAL STATEMENTS

Respordent in her brief made the

following erroneous statements to which

petitioners point out the references in

the record which disclose the error

therein,

A. At page 5 of Respondent's Brief

she makes the totally false assertion

"that there was no indication whatever

in the Motion for Judgment, nor at any

time thereafter in the State

proceedings, that the Administratrix's

action was brought pursuant to the

Longshoreman's and Harbor Workers'

Compensation Act, 33 U.8.C., Section

901, et seq. (LHWCA)." She then states

that the first time the LHWCA was

mentioned by the Administratrix was in

her Petition for Rehearing in the

Virginia Supreme Court.

Paragraphs 7 and 8 (App F3-F4) of

the Administratrix's Motion for Judgment

deal specifically with Allied's

unsuccessful summary judgment attempt to

”"

ny

a |

~ 7 “i

bar her claim under the 1972 Amendments

to the LHWCA. Appended to her Motion

for Judgment as Exhibit "B" was the U.S.

District Court Order and Opinion dated

August 2, 1976, which appears herein as

Complaint of Allied Towing Corp.,

(EDVA 1976) 416 F.Supp. 1207 (App

J1-3J16). That entire opinion which was

made a portion of the Administratrix's

Motion for Judgment deals with her right

and that of the other then plaintiffs to

assert their causes of action under the

LHWCA. Judge Winston's opinion from the

Circuit Court of the City of Norfolk

(App. D1-D27) at D3, specifically refers

to the Administratrix's right to proceed

under the LHWCA.

Curiously Respondent on page 4 of

her Brief cites both the Motion for

Judgment and the opinion granting the

Administratrix's right to proceed under

the LHWCA. Petitioners' right to

proceed under the LHWCA was expressly

affirmed in Allied Towing Corp. v.

Tatem, (4th Cir. 1978) 580 F.2d 702

(App I-1-112). Fatricia Ann Brown

received LHWCA compensation from her

father's death in 1975 until this matter

was settled in 1980, a period in excess

of 5 years.

Additionally, Paragraphs 3 and 8 of

the Administratrix's Motion for Judgment

against Allied, decedent's employer and

the vessel owner, contain language,

appropriate to an action brought under

the LHWCA. Paragraph 3 (App F2) charges.

"negligence of the defendant acting as a

shipowner" while Paragraph 8 (App F4)

alleges the "vessel ATC 3060 guilty of

non-excluded owner occasioned negligence

which contributed to the explosion."

This is the exact language of Griffith

v. Wheeling Pittsburgh Steel

Corporation, 521 F.2d 31 (1975) cert.

den. 423 U.S. 1054, which was relied on

by both the District Court and Fourth

Circuit in affirming that the

Administratrix has "a cause of action in

negligence against their employer in its

capacity as owner of the ATC 3060" (App

J7 and J8).

B. Respondent states that "the

Virginia Supreme Court remanded the case

to the trial court solely for the

purpose of having the sum awarded

Hoggard redistributed among the other

three claimants, Kay Brown, Ronnie Brown

and Patricia." In fact the Virginia

Supreme Court remanded “the case for

further proceedings not inconsistent

with the views expressed in this

opinion" (App A22) i.e. “Kay's cause of

action is cognizable only under Virginia

law" (App A20).

II.

THE ADMINISTRATRIX AS PERSONAL

REPRESENTATIVE OF THE DECEDENT IS THE

PROPER PARTY CHARGED WITH MAINTAINING

ALL ASPECTS OF THIS MARITIME WRONGFUL

DEATH CLAIM.

While it is Petitioners' belief and

intent that all persons named as

Petitioners in the style are petitioning

parties properly before the Court, the

Petitioner Kay J. Brown, Administratrix

as the personal representative of her

deceased husband is the proper party

charged with maintaining all aspects of

this maritime wrongful death act claim.

In a third party wrongful death

claim under Section 33 U.S.C., Section

905 LHWCA (App Ll), the Act provides “an

injured employee, or his legal

representative in case death results

from the injury, may elect to claim

compensation under the Act, or maintain

an action at law or in admiralty for

damages on account of such injury or

death." (Emphasis added)

Under the general maritime law,

this Court has directed that the Death

on the High Seas Act, 46 U.S.C. 761, be

the primary guide for the lower “courts

as they refine the non-statutory death

remedy." Mobil Oil Corp. vy,

Higginbotham, 436 U.S. 618, 624.

The Jones Act, 46 U.S.C. 688, like

DOSHA and LHWCA vests the wrengful death

cause of action in the “personal

representative of the decedent."

Cases interpreting these federal

statutes and the general maritime law

have uniformly held that "only the

personal representative and not the

beneficiary has the right to sue." Ivy

v. Security Barge Lines, Inc., 585 F.2d

732 (5th Cir. 1978); Futch v. Midland

Enterprises, Inc., 471 F.2d 1195 (5th

Cir. 1973); Green v. Ross, 338 F.Supp

365 (DC SD Fla. 1972) aff'd. 481 F.2d

102, cert. denied 414 U.S. 1068 (wherein

a dependent stepchild was held to be a

permissive beneficiary).

This Court has interpreted similar

language in the Federal Employers

Liability Act, 45 U.S.C. Section 51. In

American Railroad Co. of Porto Rico v.

Birch, 224 U.S. 547, the widow and son

of a deceased railroad worker brought an

action as sole beneficiaries and the

lower court held that they should not be

compelled to have an administrator

appointed for purposes of suit. This

Court reversed although a full jury

trial had been held.

"But the words of the act will

not yield to such a liberal

construction, They are too

clear to be other than

strictly followed. They give

an action for damages to the

person injured, or, ‘in case

of his death, .. . to his oz

her personal representative.'

-((T)his distinction

between the parties to sue and

the parties to be benefited by

the suit makes clear the

purposes of Congress. To this

purpose we must yield."

At U.S. 557.

The term “personal representative"

requires some designation by a court

that the individual seeking to prosecute

the wrongful death action is an

administrator of the decedent's estate.

Complaint of Cosmopolitan Ship Co.,

£.A., 453 F.Supp 265 (SDNY 1978).

Congress intended that the “personal

representative" receive his or her

authority from a state, See Briggs v.

Pennsylvania R. Co. (2d Cir. 1946) 153

F.2d 841, 84; The Pan Two, (DC MD

1939) 26 F.Supp. 990, 993.

Kay J. Brown is the court appointed

personal representative and as such is

the only person procedurally capable of

bringing this action,

III.

S'"?PLEMENTAL LAW

While Brown v. Brown was not

expressly mentioned, Judge D. Dortch

Warriner of the Eastern District of

Virginia, in an opinion order dated

March 29, 1984, refused to dismiss an

action on the ground “that no maritime

action for wrongful death in State

waters based on negligence exists."

Judge Warriner relying on Foremost

Insurance Co. v. Richardson, 457 U.S.

«aie

F.2d 841, 84; The Pan Two, (DC MD

1939) 26 F.Supp. 990, 993.

Kay J. Brown is the court appointed

personal representative and as such is

the only person procedurally capable of

bringing this action,

IIl.

SUPPLEMENTAL LAW

While Brown v. Brown was not

expressly mentioned, Judge D. Dortch

Warriner of the Eastern District of

Virginia, in an opinion order dated

March 29, 1984, refused to dismiss an

action on the ground "that no maritime

action for wrongful death in State

waters based on negligence exists."

Judge Warriner relying on Foremost

Insurance Co. v. Richardson, 457 U.S.

-ll-

668 (1982) refused to follow that

portion of Ford v. Wooten, 681 F.2d

712 (llth Cir. 1982) relied on by the

Virginia Supreme Court and respondent

herein.

Judge Warriner's opinion is set

forth in full hereafter.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

ROSEMARY MCKENNEY STANDBRIDGE,

Individually, etc., et al.

Vv. CIVIL ACTION NO. 83-0609R

JOHN DALE TAYLOR, et al

OPINION

The Court has before it a number of

motions in this consolidated action.

They have been fully briefed.

The defendants' motion to dismiss

the action on the ground that no

maritime action for wrongful death in

ol 2x

State waters based on negligence exists,

is DENIED.

Ford v. Wooten, 681 F.2d 712

(llth Cir. 1982) was decided barely a

month after Foremost Insurance Co. v.

Richardson, 457 U.S. 668 (1982). The

author of Ford is, so far az I am

concerned, a prime authority on any

aspect of the law. As a matter of pure

fact I doubt there is any more

respectable authority but as a matter of

law there are two: the Court of Appeais

for the Fourth Circuit and the United

States Supreme Court. Obviously,

Foremost had not come into Judge

Hoffman's hands at the time he wrote

Ford. Would that it had.

It is in my hands and I must

consider its effect upon the instant

case. The opinion in Foremost does

not say in explicit words that

o3%-

defendants' motion in this case must be

denied. Nor does it say that in a case

such as this, the court should dismiss.

But it is implicit in the opinion as a

whole that suits for wrongful death or

personal injuries involving purely

pleasure craft on State territorial

waters are cognizable in admiralty. I

so hold.

The moving consideration for the

Foremost decision is, in my opinion,

"the need for uniform rules to govern

conduct and liability...." 457 U.S. at

674. Its purpose would not be achieved

if we proceeded in admiralty court but

applied State negligence and wrongful

death rules, Accordingly, I hold that

admiralty rules will apply in all

aspects of the trial ineluding, but not

being limited to, questions of

comparative negligence, questions of the

-14-

Ke

availability of a jury, and questions of

limitations on liability.

The specific question presented on

the limitation of liability to the value

of the boat owned by defendant Taylor

and now transferred to the trustee is

not properly before the Court,

Accordingly, the Court makes no ruling

thereon.

And it is so ORDERED.

/s/ D. Dortch Warriner

United States District

Judge

Dated: 29 March 1984

In Virginia there now exists a

direct and irreconcilable conflict

between the Supreme Court of Virginia

and the United States District Courts in

the proper exercise of maritime and

admiralty jurisdiction arising out of

wrongful death on state territorial

waters.

CONCLUSION

The respondent has failed to

address the primary issues in this case.

She has raised false or irrelevant

collateral issues not material to the

basic issued raised by the Petitioners.

The Petitioners claim that under any and

all theories of maritime wrongful death,

whether the statutory LHWCA or under the

general maritime laws of the United

States, federal admiralty jurisdiction

applies and must be followed.

As stated by Justice Powell in his

dissent in Foremost (supra) at 682:

"State courts are duty

bound to apply federal as well

as local ‘uniform rules of

conduct.' See Testa v. Katt,

330 US 386, 91 L.Ed. 967, 67

S.Ct. 810 (1947). The Court

does not suggest that state

courts lack competency to

apply federal as well as state

law to this type of law

traffic. And this Court

stands ready, if necessary, to

review state decisions to

shhin

ensure that important issues

of federal law are resolved

correctly."

Respectfully submitted,

KAY J. BROWN, ADMX., ETC.

By Bars: ‘2 Noa

Alan P. Owens

Alan P. Owens

SMITH AND OWENS

250 Monticello Arcade

Post Office Box 3646

Norfolk, Virginia 23514

Attorney for Petitioners

CERTIFICATE OF SERVICE

I hereby certify that on or before

June 6, 1984, three copies of the

foregoing Petitioners Reply Brief were

mailed to S. Miles Dumville, Esquire,

310 South Boulevard, Post Office Box

14515, Richmond, Virginia 23221, Counsel

for Patricia Ann Brown; and three copies

of the foregoing Petitioners' Reply

Brief were hand delivered to Wiley G.

Gary, Esquire, 223 Monticello Arcade,

Norfolk, Virginia, Guardian ad Litem for

Ronnie Edward Brown.

I further certify that all parties

required to be served have been served.

aR) OES Be:

Alan P. Owens

Counsel for Petitioners

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