# Opposition Brief — St. John Stevedoring Co. v. Wilfred

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1987
- **Citation:** 484 U.S. 976

## Text

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Nos. 87-273 and 87-381 NOV: 16 98?

Jn the Supreme Court of the Gnited

OCTOBER TERM, 1987

St. JOHN STEVEDORING COMPANY, ET AL.,
PETITIONERS

v.
JOHNETTA WILFRED

ALENE C. JONES, PETITIONER
V.
St. JOHN STEVEDORING COMPANY, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

CHARLES FRIED
Solicitor General
Department of Justice
Washington, D.C. 20530
(202) 633-2217
GEORGE R. SALEM
Solicitor of Labor
ALLEN H. FELDMAN
Associate Solicitor
STEVEN J. MANDEL
Counsel for Appellate Litigation
NATHANIEL I. SPILLER
Attorney
Department of Labor
Washington, D.C. 20210

QUESTIONS PRESENTED

1. Whether a surviving dependent parent’s death
benefits under the Longshore and Harbor Werkers’ Com-
pensation Act, 33 U.S.C. 901 ef seg., may be subject to an
offset as the result of a third-party settlement signed by the
decedent and the surviving parent.

2. Whether the court of appeals properly concluded
that a surviving minor child is entitle! to death benefits
under the Longshore and Harbor Workers’ Compensation
Act, as an “acknowledged illegitimate child dependent
upon the deceased,” where ample uncontroverted evidence
indicated both acknowledgement of paternity and
dependency.

3. Whether a surviving minor child’s claim to receive
death benefits under the Longshore and Harbor Workers’
Compensation Act may be extinguished or reduced by a
settlement of a third-party tort suit that was entered into
by the employee on behalf of himself and his “heirs [and]
next of kin,” but in which the child was not separately
represented.

(1)

TABLE OF CONTENTS

Page
EES SR aE ee a ae |
aerate Oe ote eis awa dhe eee wee ee Came 1
ea Site ed gw ban, 6 4.48 BO Eh rar ae BO RT ot 2
ee ls dab b Meek Ae Moe ee Owe 6
AN SEE: Da a eee 12
TABLE OF AUTHORITIES
Cases:
Aetna Life Ins. Co. v. Moses, 287 U.S. 530 (1933) ....... 11
Anderson v. City of Bessemer City, 470 U.S. 564

BOE lt a ASE Sn a 8
Bloomer v. Liberty Mutual Ins. Co., 445 U.S. 74

es cache sa weenua es 11
Bose Corp. v. Consumers Union of the United States,

a PE UUED occ escacs cb saekeeuseass 7
Carter v. Director, OWCP, 751 F.2d 1398 (D.C. Cir.

eI, is sods gig ya Bekah w ia eda wae 11
Great Lakes Dredge & Dock Co. v. Brown, 47 F.2d 265

Ne 11
Ingalls Shipbuilding Division v. White, 681 F.2d 275

ies ci pividh eae a 1 oes ade e Ss 4
International Mercantile Marine Co. v. Lowe, 93 F.2d

663 (2d Cir.), cert. denied, 304 U.S. 565 (1938) ....... 10-11
Inwood Laboratories, Inc. v. Ives Laboratories, Inc.,

EE Cr oe ae a 7
Kelley v. Southern Pacific Cu., 419 U.S. 318 (1974) ..... 8
Puig v. Standard Dredging Corp. 599 F.2d 467 (Ist Cir.

NE Nan Sache LG Seu aa a pene es 10
Pullman-Standard v. Swint, 455 U.S. 273 (1982) ........ 7,8
Shahady v. Atlas Tile & Marble Co., 673 F.2d 479 (D.C.

ee yy osha vas ee ta 4
Standard Dredging Corp. v. Henderson, 150 F.2d 78

in nk Cho des esdebe cue cs teen 65 8
Texas Employers’ Insurance Ass’n v. Shea, 410 F.2d 56

et ag sy ey kaa bbe wk 5, 8, 9

1V

Cases — Continued: Page
Texas Employers’ Insurance Ass’n v. Sheppeard, 62 F.2d
ob FE ene eae Perea ea 8
Travelers Insurance Co. v. Marshall, 634 F.2d 843 (Sth
Se I eee eat eres asebuehhe waked ee 7
United States v. Fidelity & Guaranty Co. v. Britton, 188
ee Ls I ED oR vies wa awceeapesseeeness 8
United States v. Singer Mfg. Co., 374 U.S. 174 (1963) ... 7-8
Weber v. Aetna Casualty & Surety Co., 406 U.S. 164
coats nrey san Ra Skne eee ee ean e cEwk a 8
Weyerhaeuser Timber Co. v. Marshall, 102 F.2d 78
I re, Crete hain ts ian p ek awe asian ae ‘7

Constitution, statutes and regulations:

U.S. Const. Amend. XIV (Equal Protection Clause) ..... 8
Longshore and Harbor Workers’ Compensation Act,

REE SR, OF” A ee ren ant Sree 2

PONE ou dias xis sc a sea wdddess¥es a3, 7

i a ca acca new eeenisaanaes 3

i Ns I os wis wiewe cagawsacsaeneue 7

se wah owns ea aad an aeenes 6, 11

Be REE eee 11

§ 33(f), 33 U.S.C. (Supp. II] 933(f) ........ 5, 6, 9, 10, 11

Fe is ID ob ak eds eeadded oes 4, 5, 6, 9, 10

§ 33(g)(1), 33 U.S.C. (Supp. IIT) 933(g)(1) ......... 4

Longshore and Harbor Workers’ Compensation Act
Amendments of 1984, Pub. L. No. 98-426, 98 Stat.

1639:
I ie aay a Se el Mn ew a ae 10
eo RR er rr ere 10

Longshoremen’s and Harbor Workers’ Compensation
Act Amendments of 1972, Pub. L. No. 92-576, § 5(d),

a oe ew eatiom ah nak 7
20 C.F.R.:
I aay aes aa a ea 4
re oe ae waa eee ae 4
I A a oS keen pede ale om widen be 4

Miscellaneous:

2 A. Larson, The Law of Workmen’s Compensation
DPR ote De anes cig We gts aN CAE Ds Bah 10

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-273

ST. JOHN STEVEDORING COMPANY, ET AL.,
PETITIONERS

V.

JOHNETTA WILFRED

No. 87-381
ALENE C. JONES, PETITIONER
v.
ST. JOHN STEVEDORING COMPANY, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (St. John Pet. App.
A1-A7)! is reported at 818 F.2d 397. The opinion of the
Benefits Review Board (St. John Pet. App. B1-B9) is
reported at 18 Ben. Rev. Bd. Serv. (MB) 68. The opinion
of the administrative law judge (St. John Pet. App.
C1-C10) is reported at 17 Ben. Rev. Bd. Serv. (MB) 109.

JURISDICTION

The judgment of the court of appeals was entered on
June 3, 1987. Petitions for rehearing were denied on

' “St. John Pet. App.” refers to the appendix to the petition for a
writ of certiorari in No. 87-273.

(1)

2

July 1, 1987 (St. John Pet. App. A8-A9). The petition for
a writ of certiorari in No. 87-273 (St. John Pet.) was filed
on August 15, 1987. The petition for a writ of certiorari in
No. 87-381 (Jones Pet.) was filed on September 1, 1987.
The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

STATEMENT

1. John Henry Jones was injured on May 27, 1979,
while working for petitioner St. John Stevedoring Co. (St.
John) (St. John Pet. App. Al, B2, C3). As a result of that
injury, St. John paid compensation benefits to Jones
under the Longshore and Harbor Workers’ Compensation
Act (LHWCA or the Act), 33 U.S.C. 901 ef seq.

The issues in this case arise from an agreement entered
into on December 23, 1981, settling a tort suit Jones had
brought against third parties in connection with his injury
(St. John Pet. App. Al-A2).? The settlement agreement?
was executed by Jones, his mother (petitioner Alene
Jones), his employer (St. John), the employer’s insurer
(Insurance Company of North America (INA)) and
several tort defendants (id. at A2), and provided that the
tort defendants would immediately pay to Jones $1.78
million, and further provided for prospective annual
payments of $280,000 for the rest of Jones’s life, commen-
cing in December 1982 (ibid.).* The settlement agreement
contemplated that if Jones died before December 1986,
then the annual payments would continue to be paid
through December 1986 to his mother or, in the event of

2 By the date of the settlement Jones’s LHWCA compensation
totaled $291,839.71 (St. John Pet. App. Al).

3 The settlement agreement is reproduced at pages 24-33 of the ap-
pendix to the petition for a writ of certiorari in No. 87-381.

4 In addition, Jones’s mother received an immediate cash payment
of $5,000 (Pet. App. A2).

3

her death, to Jones’s estate (ibid.). In addition to resolving
all claims against the third-party tortfeasors, the settle-
ment provided that St. John and its insurer would be fully
reimbursed for the benefits they paid under the LHWCA
and would receive “ ‘a credit * * * for accrual of all com-
pensation benefits and medical expenses in the future’ ”
(ibid.). The settlement agreement specified the parties’ in-
tent to bind Jones’s “ ‘heirs, executors, administrators,
assigns, next of kin, or other legal representatives’ ” (id. at
A6).

Jones died in June 1982, before the date upon which the
first annual payment prescribed in the agreement was due
(St. John Pet. App. A2, B2, C3). Under the terms of the
settlement, therefore, Jones’s mother received more than
$1.4 million ($5,000 plus five annual payments of
$280,000 each) (id. at A6). Independent of the settlement,
Jones’s mother filed a separate claim under Section 9 of
the LHWCA, 33 U.S.C. 909, for death benefits from the
employer, as did Sheryl Wilfred, on behalf of Jones’s
alleged minor daughter Johnetta Wilfred (Pet. App. A2,
Cl). Those latter claims are the subject of this action.

2. The administrative law judge (ALJ) awarded
LHWCA death benefits to Jones’s mother on the ground
that she had been economically dependent on Jones (St.
John Pet. App. C4), but denied benefits to Jones’s
putative daughter (id. at C10). The ALJ explained that
State law is dispositive on the question whether a claimant
is decedent’s “child” for purposes of statutory eligibility
“because the LHWCA does not define this operative term”
(id. at C5). The ALJ concluded that, under the standards
established by the law of Louisiana (the state in which the

> Section 2(14) of the LHWCA, 33 U.S.C. 902(14), says that a child
entitled to death benefits includes an “acknowledged illegitimate child
dependent upon the deceased.”

4

the child was domiciled (id. at C5-C6)), “it ha[d] not been
definitively established that the decedent was the natural
father” (id. at C9).

3. The Benefits Review Board (BRB or the Board)
reversed the ALJ’s denial of benefits to the child (St. John
Pet. App. B9).° The Board ruled that federal, not state,
law controlled whether Jones had acknowledged paternity
for purposes of the Act, and that, under federal law, “the
evidence overwhelmingly supports a finding of
acknowledgement” (id. at B4). The Board also concluded
that “uncontradicted testimony” established the child’s
dependency as a matter of law (id. at B6) and that she was
therefore entitled to receive statutory death benefits.

The Board affirmed the ALJ’s award of benefits to
Jones’s mother. It rejected (St. John Pet. App. B7) the
argument that Section 33(g) of the Act, 33 U.S.C. 933(g),
requiring third-party settlement agreements to be ap-
proved in writing by the employer and timely filed with the
Department of Labor, bars statutory compensation here.
That provision, it said, is applicable only if the amount of
the third-party settlement is less than the compensation
awarded under the Act, and in this case the settlement was
for considerably more than the amount of statutory death
benefits (St. John Pet. App. B7). Further, the Board
stated (ibid.) that, in any event, the procedural formalities
of Section 33(g) did not apply to Jones’s mother because,
as Jones was still living at the time of the settlement, his
mother was not then a “person entitled to compensation”
in the form of death benefits within the meaning of Sec-
tion 33(g)(1), 33 U.S.C. (Supp. III) 933(g)(1).

¢ The Director, Office of Workers’ Compensation Programs, to
whom the Secretary of Labor has delegated authority to administer
the Act (20 C.F.R. 701.202, 802.410(b)), is an automatic party in
LHWCA cases. 20 C.F.R. 801.2(10); Ingalls Shipbuilding Division v.
White, 681 F.2d 275, 279 (Sth Cir. 1982); Shahady v. Atlas Tile &
Marble Co., 673 F.2d 479, 482 (D.C. Cir. 1982).

5

Relying upon its conclusion that Jones’s mother was not
a “person entitled to compensation” within the meaning of
Section 33(g), the Board also reasoned that St. John was
not entitled under Section 33(f), 33 U.S.C. 933(f), to
reduce its LHWCA benefits payments to Jones’s mother
to reflect the third-party settlement (St. John Pet. App.
B8). In the Board’s view, “the settlement was entered into
prior to death and presumably compensated the employee
and mother for loss due to the employee’s disability, rather
than loss due to his death” (ibid.).

4. The court of appeals affirmed the Board’s award of
benefits to Jones’s illegitimate child and reversed the
Board’s denial of St. John’s request that money paid pur-
suant to the settlement be credited against benefits owing
to Jones’s mother (Pet. App. A7).

The court of appeals reasoned that Johnetta Wilfred
was an “acknowledged illegitimate child dependent upon
the deceased” (33 U.S.C. 902(14)), and thus was entitled to
LHWCA death benefits. The court relied (St. John Pet.
App. A4) on Texas Employers’ Insurance Ass’n v. Shea,
410 F.2d 56 (Sth Cir. 1969) and Weyerhaeuser Timber Co.
v. Marshall, 102 F.2d 78 (9th Cir. 1939)), to support the
proposition that even if state law precludes a designation
of paternity, LHWCA benefits may still be awarded if a
paternal link is proved. On the facts of this case, the court
of appeals concurred in the Board’s conclusion that “ ‘the
evidence overwhelmingly supports a finding of
acknowledgment’ ” (St. John Pet. App. A4). The court
also agreed with the Board that the child, who was in utero
at the time of Jones’s injury, was dependent on Jones (id.
at A4-AS5).

With respect to Jones’s mother, the court stated that it
“do[es] not disagree necessarily with the reasoning of the
BRB on th[e] statutory interpretation” that Jones’s mother
was Statutorily barred from death benefits or required by
Statute to set off setthkement monies against them, because

6

at the time the settlement agreement was formalized she
was not a “person entitled to compensation” under either
Section 33(g) of Section 33(f) of the LHWCA. But the
court also found that by participating in the settlement
Jones’s mother had “obligated herself to give the employer
and compensation carrier credit for all sums she received
as a result of the tort settlement agreement” (St. John Pet.
App. A6). Since her recovery under the settlement would
far exceed any death benefits under the LHWCA, the
court therefore decided that St. John and its insurer “are
entitled to a credit for the full amount of compensation
benefits owed to the decedent’s mother” (ibid.).

By contrast, the court rejected St. John’s argument that
a similar set-off should be applied to the minor child’s
LHWCA benefits. Although the settlement agreement
purported to bind Jones’s “ ‘heirs * * * [and] next of kin’ ”
(St. John Pet. App. A6), at the time of the settlement
Johnetta Wilfred was not represented by a statutory guar-
dian responsible for protecting her rights (§ 11, 33 U.S.C.
911). The court therefore concluded that Jones lacked
authority to settle or waive in advance any right to death
benefits that might accrue to his child (St. John Pet. App.
A7).

ARGUMENT

The decision of the court of appeals is correct. It does
not conflict with any decision of this Court or of any other
court of appeals. Review by this Court is therefore not
warranted.

1. Petitioners in No. 87-273 (St. John and INA) con-
tend (Pet. 7-10) that the court of appeals and the Board
improperly substituted their views for those of the ALJ on
the question of filiation and impermissibly made findings
as to dependency even though the ALJ had not reached
that issue. Petitioners, however, misperceive the nature of

7

the review function exercised by the Board and affirmed
by the court of appeals.

Section 9(c) of the LHWCA, 33 U.S.C. 909(c), entitles a
surviving “child” to death benefits in the event of an “in-
jury [that] causes death,”’ and Section 2(14), 33 U.S.C.
902(14), defines “child” as including an “acknowledged il-
legitimate child dependent upon the deceased.” The ALJ
held (St. John Pet. App. C5-C6) that state law governs the
question whether one is a decedent’s “child” within the
meaning of the Act “because the LHWCA does not define
this operative term.”

The Board correctly applied federal rather than state
law to this issue and the court of appeals correctly upheld
that decision. It has long been settled that in determining
whether an illegitimate child is entitled to benefits under
the Act, the statutory definition is “complete in itself” and
does not require resort to state law. Weyerhaeuser Timber
Co. v. Marshall, 102 F.2d 78, 81 (9th Cir. 1939) (“Con-
gress having provided all definitions necessary to the
determination of whether claimant is a ‘child’ and its
authority being paramount and exclusive as to the subjects
on which it has legislated, it is not allowable to go beyond
the Act provisions.”).® It is likewise settled under the

7 At the time of the employee’s death in 1982, the LHWCA also
provided death benefits “if the employee who sustains permanent total
disability due to the injury thereafter dies from causes other than the
injury.” Longshoremen’s and Harbor Workers’ Compensation Act
Amendments of 1972, Pub. L. No. 92-576, § 5(d), 86 Stat. 1253-1254.
That broader death benefits provision was in effect between 1972 and
1984. See, e.g., Travelers Insurance Co. v. Marshall, 634 F.2d 843
(Sth Cir. 1981).

§ Having found that the ALJ’s findings of filiation rested on an er-
roneous view of the law, the Board correctly set them aside on that
basis. Pullman-Standard v. Swint, 456 U.S. 273, 287 (1982). See aiso
Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S.
485, 501 (1984); Inwood Laboratories, Inc. v. Ives Laboratories, Inc.,
456 U.S. 844, 855 n.15 (1982); United States v. Singer Mfg. Co., 374

LHWCA that acknowledgment —the statutory standard
for paternity? —“does not require a notary’s seal or any
other ritualistic proclamation.” Texas Employers’ In-
surance Ass'n v. Shea, 410 F.2d 56, 61 (Sth Cir. 1969).

U.S. 174, 194 n.9 (1963). Moreover, as the court of appeals noted (St.
John Pet. App. A4), the Board “readily concluded that ‘the evidence
overwhelmingly supports a finding of acknowledgment.’ ” Remand
was unnecessary on the question of filiation because “the record per-
mits only one resolution of the factual issue.” Pul/man-Standard, 456
U.S. at 292 (citing Kelley v. Southern Pacific Co., 419 U.S. 318,
331-332 (1974)). See Anderson v. City of Bessemer City, 470 U.S. 564,
573 (1985).

For the same reason, there was no need for the Board to remand to
the ALJ on the question of dependency. Johnetta Wilfred was con-
ceived five days before her father was injured, and “[d]uring the time
Sheryl Wilfred carried Johnetta to term, she received regular financial
aid from John Henry Jones” (St. John Pet. App. A5). The court of
appeals, concurring in the Board’s finding of dependency, emphasized
(ibid. (emphasis in original)):

The uncontroverted testimony reflects that from the time Johnet-
ta was in utero, and continuing to the date of his death, John
Henry Jones sent Ms. Wilfred hundreds of dollars for their sup-
port, notably in regular payments. In addition, he bought the
child clothing and gifts.

As the court held (ibid.), these facts fully established dependency
under the LHWCA. See Texas Employers’ Insurance Ass’n v. Shea,
supra; United States v. Fidelity & Guaranty Co. v. Britton, 188 F.2d
674 (D.C. Cir. 1951); Standard Dredging Corp. v. Henderson, 150
F.2d 78 (Sth Cir. 1945); Texas Employers’ Insurance Ass’n v. Shep-
peard, 62 F.2d 122 (Sth Cir. 1932).

® Petitioners suggest (St. John Pet. 7-8), based on Weber v. Aetna
Casualty & Surety Co., 406 U.S. 164 (1972), that the acknowledgment
requirement is unconstitutional. Even if this argument were
meritorious, it would not help their case; eliminating acknowledgment
as a factor would not strengthen the employer’s case because it would
become easier for a child to establish entitlement to benefits. In any
event, Weber held that a state worker’s compensation statute violates
the Equal Protection Clause of the Fourteenth Amendment by
discriminating against an unacknowledged illegitimate who was other-
wise dependent on the injured worker. “{D]Jependency, not the legality

9

2. Petitioner in No. 87-381, Jones’s mother, contends
(Pet. 9) that the court of appeals incorrectly required her
to set off against her statutory death benefits the amount
received from the third-party tortfeasors—thus entirely
cancelling out her claim to statutory benefits.'° She con-
tends that since she was not entitled to any benefits under
the LHWCA at the time the third-party settlement was ex-
ecuted, the settlement could not have extinguished her
statutory right to death benefits (id. at 10). In the alter-
native, petitioner contends that her participation in the
settlement was not fatal to her right to receive death
benefits under the LHWCA as a matter of contract inter-
pretation (id. at 11-14).

The Board held, and the court of appeals did “not
disagree necessarily” that Mrs. Jones’s entitlement to
benefits was not barred by her failure to comply with the
procedural requirements of Section 33(g), nor were her
benefits subject to an offset under Section 33(f). Section
33(g) provides that in order for a “person entitled to com-
pensation” to compromise a claim against a third-party for
less than the total compensation payable under the statute,
that person must first secure the employer’s permission to
settle. That Section is not applicable here because the set-
tlement amount exceeded the death benefits (see note 10,
supra). Section 33(f),'' which generally provides for off-

of the father’s nuptials, [has always been] the keynote of coverage”
under the LHWCA (Texas Employers’ Insurance Ass’n v. Shea, 410
F.2d 56, 59 (Sth Cir. 1969)).

10 As previously noted (page 3, supra), petitioner received $5,000 in
her own right during Jones’s lifetime, and $1.4 million after his death
under the contingency provided for in the settlement. By contrast,
petitioner’s statutory death benefits could not amount to more than a
few thousand dollars a year. See St. John Pet. App. B7 & n.5.

'! Section 33(f), 33 U.S.C. (Supp.IID) 933(f), provides:

If the person entitled to compensation institutes proceedings
within the period prescribed in subsection (b) of this section the

SLOT Ne

10

set of third-party tort recoveries against compensation
benefits, likewise does not apply because, as the Board
stated, Mrs. Jones was not a “person entitled to compensa-
tion” within the meaning of that section at the time she
entered into the settlement (St. John Pet. App. B7-B8).
The court of appeals, without questioning any of this
reasoning, “perceiv[ed] a contractual basis for requiring a
credit,” arising from an explicit term of the settlement
agreement which Jones’s mother signed (id. at A6).

The issue does not warrant further review. The decision
of the court of appeals rests on the particular language of
the settlement agreement in this case, a factbound deter-
mination lacking in general application or significance
other than to the parties. In any event, the court of appeals
reached the correct result. !2

employer shall be required to pay as compensation under this
chapter a sum equal to the excess of the amount which the
Secretary determines is payable on account of such injury or
death over the net amount recovered against such third person.
Such net amount shall be equal to the actual amount recovered
less the expenses reasonably incurred by such person in respect to
such proceedings (including reasonable attorneys’ fees).

The Longshore and Harbor Workers’ Compensation Act Amend-
ments of 1984, Pub. L. No. 98-426, §§ 21(c) and (d), 98 Stat. 1652,
amended Section 33(f) and (g) in ways that are not material to the
disposition of the petitions in this case.

'2 Like the court of appeals, we do not quarrel with the Board’s
conclusion that because Jones’s mother was not then entitled to
LHWCA benefits Section 33(f) was inapplicable when the settlement
was executed. A basic principle of workers’ compensation law is that a
dependent’s right to death benefits is independent from the employee’s
compensation claim and does not arise until the employee’s death. 2
A. Larson, The Law of Workmen’s Compensation § 64.11 (1987);
Puig v. Standard Dredging Corp., 599 F.2d 467, 469 (ist Cir. 1979)
(“the cases under the Longshoremen’s Act have consistently held that
the right to death benefits is separate and distinct from the right to
disability benefits and does not arise until death occurs”); Jnterna-
tional Mercantile Marine Co. v. Lowe, 93 F.2d 663, 665 (2d Cir.)
(“[w]hen death occurs, a new cause of action arises which requires an

11

3. Petitioners in No. 87-273, St. John and INA, fur-
ther contend (Pet. 5-7) that the third-party settlement en-
titled them to an offset against the future death benefits
not only of Jones’s mother—a signatory to the
agreement —but against the future death benefits of the
minor daughter as well. In support of this contention,
petitioners recite (id. at 6) that Jones settled his third-party
claim, not only for himself, but also for his “ ‘next of
kin’ ” and thereby cut off the child’s claims against the
third-party tortfeasors.

The court of appeals stated that Jones “did not have the
power to settle or waive in advance any death benefits that
might accrue to his minor daughter” (Pet. App. A7). As
the court noted (ibid.), the LHWCA favors the protection
of the rights of minors, specifically through the appoint-
ment, as appropriate, of a guardian “by a court of compe-
tent jurisdiction.” 33 U.S.C. 911. In the present case, there
was no court-appointed legal guardian to represent the

adjudication on all questions such as accident, notice of death, claim,
causal relationship, and dependency”), cert. denied, 304 U.S. 565
(1938).

The Board’s view would not preclude the possibility that Section
33(f) became applicable when Mrs. Jones became “entitled to compen-
sation,” viz., at the moment of her son’s death. Under this reading,
any amount that she recovered under the settlement agreement before
her son’s death would not be subject to the statufory offset. The
amount she received after his death, however, could be offset against
future death benefits if the settlement agreement contemplated that
result. Since such an offset, limited to payments received after the set-
tling parent became entitled to benefits, is permitted by the language
and purpose of Section 33(f), it is not inconsistent with the policy
against release of statutory entitlements expressed in Section 16 of the
LHWCA, 33 U.S.C. 916. See Great Lakes Dredge & Dock Co. v.
Brown, 47 F.2d 265 (N.D. Ill. 1930). Moreover, recognition of an off-
set under Section 33(f) fully effectuates the statutory policy against
double recovery. Aetna Life Ins. Co. v. Moses, 287 U.S. 530, 542
(1933). See also Bloo:nerv. Liberty Mutual Ins. Co., 445 U.S. 74, 79,
87 (1980); Carter v. Director, OWCP, 751 F.2d 1398, 1400-1402 (D.C.
Cir. 1985).

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12

interests of the child in the settlement. Unlike Jones’s
mother, therefore, his daughter did not participate in ex-
ecution of the settlement, and she received nothing under
the settlement either before or after her father’s death. On
the other hand, petitioners St. John and INA had in-
tervened in the third-party suit and were parties to the set-
tlement. See Jones Pet. App. 24, 32-36. Petitioners’ in-
terests were fully represented and they have no cause to
complain that the settlement indirectly prejudiced their
rights as against the unrepresented minor.

CONCLUSION

The petitions for a writ of certiorari should be denied.
Respectfully submitted.

CHARLES FRIED
Solicitor General
GEORGE R. SALEM
Solicitor of Labor

ALLEN H. FELDMAN
Associate Solicitor

STEVEN J. MANDEL
Counsel for Appellate Litigation

NATHANIEL I. SPILLER
Attorney

NOVEMBER 1987

xx U.S. GOVERNMENT PRINTING OFFICE: 1987—202-037/60113

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0868%3A3. Public record. Not legal advice.