Petition for Writ of Certiorari — Aetna Casualty & Surety Co. v. McMaster

a in

Supreme Courus. |

89 “| 72 FILED

| : JUL 27 1989

No. ‘

= SER,

In The —

Supreme Court of the United States

October Term, 1989

*

AETNA CASUALTY & SURETY COMPANY,

Petitioner,

CHARLES R. McMASTER, JR.,

Respondent.

>

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF LOUISIANA

Gary M. Zwain*

ELIZABETH D. MAcKay

Dup.ass, WITMAN & ZWAIN

2900 Three Lakeway Center

3838 N. Causeway Boulevard

Metairie, Louisiana 70002

(504) 832-3700

~ Counsel for Petitioner

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the state court’s exercise of jurisdiction

under the Louisiana Worker’s Compensation Law, LRS

23:1021, et seq., contravenes the exclusive jurisdiction of

the longshoremen and Harbor Workers’ Compensation

Act, 33 U.S.C. Sec. 901, et seq.

LIST OF PARTIES

Rule 28.1 Listing of Corporate Petitioner:

Aetna Casualty & Surety Co., Inc.

Rule 21.1(b) Listing of Parties:

All parties are listed in the caption.

TABLE OF CONTENTS

Page

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PERTINENT CONSTITUTIONAL PROVISION

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REASONS FOR GRANTING THE WRIT ........... 7

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iv

TABLE OF AUTHORITIES

Page

CAsEs:

Christman v. Dravo Corp., 466 A.2d 209 (Pa. Super.

NS ANEW Asana se RS US oth ed Sep eAneekamawieeETP. on 16

Davis v. Department of Labor, 317 U.S. 249, 63 S. Ct.

rr Se FU Pe rerrrrr rrr TT Teter 10

Director, Office of Worker’s Compensation Programs,

U.S. Department of Labor v. Perini North River

Associates, 459 US. 297 (USGS). .. 2.0... ec ceeeescees 14

Ellis v. Travelers Insurance Company, 129 So.2d 729

Pere ere ere Tere eer ee ey ee eT ee ee 14

Flowers v. Travelers Insurance Co., 258 F.2d 220 (5th

oe WN oc vurahbeaektaducadeweebanseebeus 10, 13, 14

Grant Smith — Porter Ship Co. v. Rhede, 257 U.S. 469,

SD. CR BS, GS Gee. Ba CUBE). nn cc csecce cs cccct 8

Herb Welding, Inc. v. Gray, 470 U.S. 414 (1985)....... 14

Logan v. Louisiana Dock Co., Inc., 541 So.2d 182 (La.

oo Se eee eer eT ey ey © 6, 7, 11, 12, 13, 14

Charles R. McMaster, Jr. v. Robert Miller and Associ-

ates, Aetna Casualty & Surety Company.............. 1

Millers Indemnity Underwriters v. Braud, 270 U.S.

39, 4S. Ct. 194, 70 L.Ed. 470 (1926) .............. 8

Noah v. Liberty Mutual Insurance Co., 267 F.2d 218

i cess ckcantenk pian sowenk ani 10, 13, 14

Pennsylvania R. Co. v. O'Rourke, 344 U.S. 334, 73 S.

ep ee 8 ee errr errr 10

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67

S.Ct. 1146, 1152, 91 L.Ed. 1447, 1459 (1947) ....... 16

TABLE OF AUTHORITIES - Continued

Page

Shaw v. Delta Air Lines, 463 U.S. 85, 95, 103 S.Ct.

2890, 2899, 77 L.Ed.2d 490, 500 (1983)............. 16

Southern Pacific Company v. Jensen, 244 U.S. 205, 37

S. Ct. 524, 61 L.Ed. 1086 (1917).......... 8, 9, 10, 13

Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S. :

Ct. 2432, 65 L.Ed.2d 458 (1980) ......... 9, 12, 13, 14

Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S. Ct.

a Fd ee ere 8

Wixom v. Travelers Insurance Co., 357 So.2d 1343

(La. App. 4th Cir. 1978) ..........ccceeceeseceeess 14

CONSTITUTIONAL AND STATUTORY PROVISIONS:

United States Constitution, Article 3 Section 2..3, 8, 17

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FG oe 2S PRPTTTrererereerieeitrie tiie 6

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33 U.S.C. Section 901, et seq... .. 1... cece cece ee eeeeee 6

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SD UB. Be ee GRD. nw. ccc sc cccccsenencses 4, 13

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33 U.S.C. Sectiem FOS Ga). ... 2... cc rccccccceess 4, 14, 15

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pn le a . ie ——

No.

..

4

In The

Supreme Court of the United States

October Term, 1989

fin

—_

AETNA CASUALTY & SURETY COMPANY,

Petitioner,

CHARLES R. McMASTER, JR.,

Respondent.

7 =

vv

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF LOUISIANA

a.

vv

Petitioner, Aetna Casualty & Surety Company,

respectfully prays that a writ of certiorari issue to review

the order of the Supreme Court of Louisiana denying

petitioner’s petition for a writ of certiorari, filed April 28,

1989.

-.

v

OPINIONS BELOW

The order of the District Court for the Parish of St.

John, filed January 3, 1989, denying petitioner’s declina-

tory exception of lack of subject matter jurisdiction,

styled “Charles R. McMaster, Jr. v. Robert Miller and Associ-

ates, Aetna Casualiy & Surety Company,” is unreported and

Vn

appears as Appendix A. The order of the Louisiana Court

of Appeals for the Fifth Circuit, filed March 21, 1989,

denying petitioner’s petition for writ of certiorari is unre-

ported and appears as Appendix B. The order of the

Louisiana Supreme Court dated April 28, 1989, denying

petitioner’s petition for writ of certiorari is unreported

and appears as Appendix C.

a.

>

JURISDICTION

Respondent, Charles R. McMaster, Jr., filed an action

against Robert Miller and Associates and Aetna Casualty

& Surety Company’, as its workers’ compensation carrier,

asserting a claim for injuries allegedly sustained during

his employ with Robert Miller and Associates. Originally,

Mr. McMaster sought relief under the Longshoremen and

Harbor Workers’ Compensation Act. He was denied ben-

efits by an Administrative Law Judge in a decision and

order rendered on May 19, 1988, which is attached as

Appendix D. On May 24, 1988, respondent filed a Notice

of Appeal with the Benefits Review Board, which is

attached as Appendix E. He filed a petition for worker’s

compensation benefits pursuant to the Louisiana

Workers’ Compensation Law on September 15, 1988,

which is attached as Appendix F. The appeal before the

Benefits Review Board is still pending.

1 Pursuant to the Louisiana Direct Action Statute, LRS

22:655, Aetna Casualty & Surety Company may be sued

directly as Robert Miller’s worker’s compensation carrier.

Petitioner, Aetna Casualty & Surety Company, filed a

declinatory exception of lack of subject matter jurisdic-

tion in the district court of the Parish of St. John asserting

that the Longshoremen and Harbor Workers’ Compensa-

tion Act had exclusive jurisdiction over respondent’s

cause of action. When the district court denied the

motion, petitioner applied for a writ of certiorari in the

Louisiana Court of Appeals for the Fifth Circuit, which

was denied on March 21, 1989. Petitioner then filed a

petition for writ of certiorari in the Louisiana Supreme

Court asserting the exclusive jurisdiction of the Long-

shoremen and Harbor Workers’ Compensation Act over

this cause of action. On April 28, 1989, the Louisiana

Supreme Court denied the petition.

The Louisiana Supreme Court was required to grant

the petition for writ of certiorari pursuant to the Long-

shoremen and Harbor Workers’ Compensation Act and

the United States Constitution, Article 3 Section 2. Accor-

dingly, the Louisiana Supreme Court’s decision is final

within the meaning of 28 U.S.C. Section 1257 and the

court has jurisdiction pursuant to 28 U.S.C. Section 1257.

sa

-

PERTINENT CONSTITUTIONAL

PROVISION AND STATUTES

1. Article 3, Section 2:

The judicial power shall extend to all cases, in law

and equity, arising under this Constitution, the laws

of the United States, and treaties made, or which

shail be made, under their authority; to all cases

affecting ambassadors, other public ministers and

councils; to all cases of admiralty and maritime juris-

diction; to controversies te which the United States

should be a party; to controversies between two or

more states; between a state and citizens of another

state; between citizens of different states; between

citizens of the same state claiming land under grants

of different states; and between a state, or the citizens

thereof, and foreign states, citizens or subjects.

2. The Longshoremen and Harbor Workers’ Com-

pensation Act, 33 U.S.C. Section 903 (a):

Except as otherwise provided in this section, com-

pensation shall be payable under this chapter in

respect of disability or death of an employee, but

only if the disability or death arises from an injury

occurring upon the navigable waters of the United

States (including any adjoining pier, wharf, drydock,

terminal, building way, marine railway, or other

adjoining area customly used by an employer in

loading, unloading, repairing, dismantling, or build-

ing a vessel).

3. 33 U.S.C. Section 902 (3):

The term “employee” means any person engaged in

maritime employment, including any longshoreman

or other person engaged in longshoreman operations,

and any harbor worker, including a ship repairman,

ship builder, and ship breaker, .. .

4. 33 U.S.C. Section 905 (a):

The liability of an employer prescribed in Section 904

of this title shall be exclusive and in place of all other

liability of such employer to the employee, his legal

representative, husband or wife, parents, depen-

dents, next of kin, and anyone otherwise entitled to

recover damages from such employer at law or in

admiralty on account of such injury or death, except

that if an employer fails to secure payment of com-

pensation as required by this chapter, an injured

employee, or his legal representative in case death

results from the injury, may elect to claim compensa-

tion under the chapter, or to maintain an action at

5

law or in admiralty for damages on account of such

injury or death. In such action the defendant may not

plead as a defense that the injury was caused by the

negligence of a fellow servant, or that the employee

assumed the risk of his employment, or that the

injury was due to the contributory negligence of the

employee. For purposes of this subsection, a contrac-

tor shall be deemed the employer of a subcontrac-

tor’s employees only if the subcontractor fails to

secure the payment of compensation as required by

Section 904 of this title.

, %

—

STATEMENT OF THE CASE

Respondent, Charles R. McMaster, Jr., began working

in 1985 cleaning barges and offering pre-inspection to the

barge owners. Respondent contracted with a number of

different barge lines from August, 1985 until March,.1986.

Respondent and his employees would travel to an empty

barge, clean it, inspect it, and make minor repairs. On the

date of respondent’s injury, March 25, 1986, respondent

was cleaning a barge for Robert Miller and Associates at

the Mississippi River Grain Elevator in Myrtle Grove,

Louisiana. The barge was located on the Mississippi

River. Respondent had just finished cleaning the barge

when he attempted to climb out of the barge by using a

ladder. The rope allegedly broke from the ladder and the

ladder slipped out from under him causing him to fall

into the barge.

Claiming to be an employee of Robert Miller and

Associates, respondent filed a claim for compensation

benefits under the Longshoremen and Harbor Workers’

Compensation Act (hereinafter referred to as LHWCA),

33 U.S.C. Section 901, et seq., on April 23, 1986. A formal

hearing was conducted on July 22, 1988. After reviewing

the evidence and hearing the testimony of the witnesses,

the Administrative-Law—Judge denied benefits. Respon-

dent is currently seeking review by the U. S. Department

of Labor’s Benefits Review Board.

On September 15, 1988, plaintiff filed suit in the 40th

Judicial District Court for the Parish of St. John the Bap-

tist seeking relief under the Louisiana Workers’ Compen-

sation Law. Louisiana Revised Statute 23:1021, et seq.

Petitioner, Aetna Casualty & Surety Company, filed a

declinatory exception of lack of subject matter jurisdic-

tion on November 3, 1988. The exception was heard by

the court on December 13, 1988 and in a judgment ren-

dered on January 3, 1989, the district court ruled that

there were sufficient reasons to presume respondent was

an employee of Robert Miller and Associates and the

exception was dismissed. Aetna Casualty & Surety Com-

pany was given until February 28, 1989 to apply for writs.

An application for supervisory writs was timely filed in

the Fifth Circuit Court of Appeals. In a decision rendered

March 21, 1989, the Court of Appeals denied writs citing

Logan v. Louisiana Dock Co., Inc., 541 So.2d 182 (La. 1989)

as its authority. On April 28, 1989, the Louisiana Supreme

Court denied a petition for writ of certiorari citing that

the instant case was governed by Logan v. Louisiana Dock

Co., Inc., supra. Petitioner now seeks a writ of certiorari

from the U. S. Supreme Court on the basis that the

Longshoremen and Harbor Workers’ Compensation Act

provides exclusive jurisdiction for respondent’s cause of

action and that his state court suit is therefore barred.

A.

vw

7

REASONS FOR GRANTING THE WRIT

A. Preliminary Statement:

A writ of certiorari should issue to review the deci-

sion of the lower court for three reasons:

First, the Longshoremen and Harbor Workers’ Com-

pensation Act has exclusive jurisdiction over respon-

dent’s cause of action;

Second, the Louisiana Supreme Court decision of

Logan v. Louisiana Dock Co., Inc., 541 So. 2d 182 (La. 1989)

is directly in conflict with decisions of a federal appellate

court and the United States Constitution?; and

Third, the LHWCA has preempted state law com-

pletely in this area so as to preclude state court exercise

of jurisdiction.

B. The Longshoremen and Harbor Workers’ Com-

pensation Act Has Exclusive Jurisdiction Over

Respondent’s Cause of Action:

Respondent, a ship repairer, sought redress first

under the provisions of the LHWCA. It was only after he

was denied benefits in the federal forum that he sought to

assert his alleged rights under the Louisiana Workers’

Compensation Laws. Petitioner contends that the federal

jurisdiction of the LHWCA is exclusive and there is no

concurrent jurisdiction over this cause of action. A fed-

eral remedy was provided, respondent availed himself of

2 A writ of certiorari to the Louisiana Supreme Court has

been sought in this case, and was filed on July 13, 1989.

oo

that remedy, and aow seeks to convert his federal claim

into a state claim for worker’s compensaticn benefits.

Article 3, Section 2 of the United States Constitution

provides that federal courts have power to hear all cases

of admiralty and maritime jurisdiction. The United States

Supreme Court, in Southern Pacific Company v. Jensen, 244

U.S. 205, 37 S. Ct. 524, 61 L.Ed. 1086 (1917), held that

provisions of the Constitution prohibited the application

of state compensation statutes to longshoremen injured

on the seaward side of the line between the land and the

sea. Subsequent to Jensen, Congress enacted the LHWCA

to provide a dependable compensation scheme to protect

those workers injured over navigable waters who were

rendered ineligible for state worker’s compensation bene-

fits. Although state courts and legislators have sought to

expand the remedies available to its workers, the

Supreme Court has not seen fit to overrule Jensen in the

71 years it has been law.

Whether or not the LHWCA allows for concurrent

jurisdiction between the federal and state courts has been

debated since the passage of the act. Concurrent jurisdic-

tion between the federal and state courts exists for

employees who occupy a shadowy area where it is diffi-

cult to determine whether state or federal law should

apply. In areas where the courts have found a “twilight

zone” or “maritime but local” activity, the employee has

been permitted to elect his remedy under either a state

worker’s comp statute or the LHWCA. See Western Fuel

Co. v. Garcia, 257 U.S. 233, 42 S. Ct. 89, 66 L.Ed. 210 (1921);

Grant Smith - Porter Ship Co. v. Rhode, 257 U.S. 469, 42 S.

Ct. 157, 66 L.Ed. 321 (1922); Millers Indemnity Underwriters

v. Braud; 270 U.S. 59, 46 S. Ct. 194, 70 L.Ed. 470 (1926).

ry Tee uli id

9

After the decision in Jensen, courts were hesitant to find

exclusive jurisdiction under the LHWCA for fear that an

employee would make a wrong choice on the coverage

issue and thereby be precluded or unnecessarily hindered

in seeking to redress his wrong.

However, under the facts of this case, none of the

exceptions for state exercise of jurisdiction exists.

Respondent, Charles R. McMaster, Jr., met both the situs

and status test under the LHWCA when the Administra-

tive Law Judge exercised jurisdiction in 1988. There have

been no allegations made by respondent that state courts

have jurisdiction over his cause of action except for the

plain reason that he was denied benefits by the Adminis-

trative Law Judge. His injury occurred over navigable

waters and he was engaged in traditional maritime activ-

ity. His is a case that clearly falls within the admiralty

jurisdiction of the federal courts, and as such, state courts

are without power to exercise concurrent jurisdiction

over this cause of action.

Because of the very nature of admiralty jurisdiction,

there must exist some compatibility between the federal

sphere of exclusive jurisdiction and a state’s right to

exercise sovereignty over its employees and its land.

However, the recognition by this Court in Sun Ship, Inc. v.

Pennsylvania, 447 U.S. 715, 100 S. Ct. 2432, 65 L.Ed.2d 458

(1980), that the LHWCA supplements rather than sup-

plants state law should not necessarily lead to the conclu-

sion that state law can validly operate in a totally federal

sphere. While federal law might be called upon to yield

to state law as it seeks to move admiralty, and hence

exclusive, federal jurisdiction shoreward, the same is not

true of state law as it seeks to expand its jurisdiction over

10

navigable waters. This assertion is buttressed by the con-

stitutional mandate that federal courts would have exclu-

sive jurisdiction over admiralty concerns and the United

States Supreme Court decision in Southern Pacific Com-

pany v. Jensen, supra.

The United States Supreme Court, in Davis v. Depart-

ment of Labor, 317 U.S. 249, 63 S. Ct. 225, 85 L.Ed. 246

(1942), held that harbor workers and longshoremen

employed in whole or in part upon the navigable waters

are clearly protected by the federal act. Since the LHWCA

has carved out of state court jurisdiction those particular

employees engaged in maritime employment, there can

be no doubt that federal courts have exclusive jurisdic-

tion over their claims for worker’s compensation. Flowers

v. Travelers Insurance Co., 258 F.2d 220 (Sth Cir. 1958); Noah

v. Liberty Mutual Insurance Co., 267 F.2d 218 (5th Cir.

1959). Employees, such as respondent, who fit into the

definition of Section 902 (3) are not part of the twilight

zone or shadowy area which would allow the state to

exercise concurrent jurisdiction.

Plaintiff was involved in maritime employment as a

ship repairer and his injury occurred on navigable water,

the Mississippi River. Respondent was clearly involved in

an activity that was provided for in the LHWCA. The

historical view is that the instant dispute falls under

exclusive federal jurisdiction. See Flowers v. Travelers

Insurance Company, supra, and Noah v. Liberty Mutual

Insurance Company, supra. Respondent clearly met both

the situs and the status test of the LHWCA and therefore

his exclusive remedy was under the Act. Pennsylvania R.

Co. v. O'Rourke, 344 U.S. 334, 73 S. Ct. 302, 97 L.Ed. 367

(1953).

11

Congress has directed both in statute and legislative

history that its intent was to utterly displace state law in

establishing federal jurisdiction. See 33 U.S.C. Section 905.

The LHWCA, an offspring of the impeccable federal

province of admiralty jurisdiction, should be allowed to

remain under the protection of federal jurisdiction. It

would be an affront to federal jurisdiction to allow a

state, land-based worker the right to advance a claim

under admiralty jurisdiction. Likewise, a claimant clearly

encompassed within the LHWCA’s remedial scope

should not be afforded the duplicitous privilege of seek-

ing redress in the state worker’s compensation laws for

an admiralty claim governed under exclusive federal

jurisdiction.

Accordingly, it is submitted that respondent’s exclu-

sive remedy lies within the LHWCA and the state courts

have no jurisdiction over his cause of action.

C. The Louisiana Supreme Court Decision of

Logan v. Louisiana Dock Co., Inc., Supra, is

Directly in Conflict with Decisions of a Federal

Appellate Court and the United States

Constitution:

Recently, the Louisiana Supreme Court has had the

opportunity to wrestle with the question of the exclusive

jurisdiction of the LHWCA in a case entitled Logan v.

Louisiana Dock Co., Inc. The Supreme Court held that

Logan’s claim was cognizable under both the state

worker’s compensation law and the LHWCA. Louisiana,

the Court stated, had concurrent jurisdiction over injuries

sustained by a worker injured on a dry dock. The

Supreme Court pointed out that Logan’s injury occurred

| il |

12

on a dry dock which has historically been viewed as an

extension of the land. The Court relied on Sun Ship v.

Pennsylania supra, for the proposition that concurrent

federal and state jurisdiction is permissible over land

based injuries. The U. S. Supreme Court, in Sun Ship,

supra, held that a state may apply its worker’s compensa-

tion scheme to land based injuries that fall within the

coverage of the LHWCA. However, Logan does not con-

sider the issue at hand: whether the injury of a maritime

worker located on a barge over navigable waters is sub-

ject to concurrent jurisdiction under both the state and

federal compensation statutory schemes. 7

Unlike Logan, plaintiff herein was employed repair-

ing barges located on the Mississippi River when his

injury occurred, thereby bringing his action within the

exclusive admiralty jurisdiction of federal courts. The

reason for finding exclusive federal jurisdictior. in a case

such as this, is more compelling than in a case where a

worker was injured on land or extensions of land but

engaging in ship building or ship repair activities. Plain-

tiff should not be able to avail himself to any of the

factual distinctions that would allow for state concurrent

jurisdiction. His injury occurred on navigable waters

while engaging in ship repair and therefore falls within

the exclusive province of the LHWCA.

The Logan decision by the Louisiana Supreme Court,

if allowed to stand, would lead to an unwarranted expan-

sion of jurisdiction of the state courts over admiralty and

longshoremen and harbor workers’ compensation claims.

The facts in the instant case concern an injury occurring

on a barge located on navigable water. The Logan case

dealt with a floating drydock which the Supreme Court

Pe | , id.

13

apparently chose to view as an extension of land. The

Appellate Decision of the Fourth Circuit, which was

reversed by the Louisiana Supreme Court, did not make

that factual distinction when holding the LHWCA pro-

vided the exclusive jurisdiction for Mr. Logan’s injury. If

Logan did decide the facts of this case, then the Louisiana

Supreme Court has, for all practical purposes, overruled

Southern Pacific Company v. Jensen as pointed out in the

dissenting opinion by Justice Lemmon.

The factual distinctions between the instant case and

the Logan case are clear. Logan was a worker who the

Supreme Court has determined is land based because of

his employment on a drydock. Respondent was working

exclusively on barges engaged in traditional maritime

activities such as cleaning and repairing the vessels. The

Logan case dealt with whether or not the states had con-

current jurisdiction over land based injuries, which this

Court has already decided in Sun Ship, Inc. v. Pennsylva-

nia, supra. This case would involve the determination of

the issue of whether or not states have concurrent juris-

diction over a province that has up until this moment

been held to be exclusively federal, i.e., those injuries

involving employees as defined within the LHWCA Sec-

tion 902 and injuries occurring over navigable waters, 33

U.S.C. 903 (a).

The decision of Logan v. Louisiana Dock Co., Inc. is

directly in conflict with the law of the United States Court

of Appeals for the Fifth Circuit. The Logan court expressly

declined to follow two landmark cases of the U. S. Fifth

Circuit, Flowers v. Travelers Insurance Company, supra, and

Noah v. Liberty Mutual Insurance Company, supra. The

Logan court conceded that Flowers was factually on all

14

fours with the issue presented in their case, but declined

to follow it, citing Sun Ship, Herb Welding, Inc. v. Gray, 470

U.S. 414 (1985), and Director, Office of Worker’s Compensa-

tion Programs, U.S. Department of Labor v. Perini North

River Associates, 459 U.S. 297 (1983). The court also

refused to follow prior Louisiana Court decisions such as

Ellis v. Travelers Insurance Company, 129 So.2d 729 (La.

1986) and Wixom v. Travelers Insurance Co., 357 So.2d 1343

(La. App. 4th Cir. 1978) because of their reliance on

Flowers and Noah. The Logan decision as applied to the

facts of the instant case, would seem to indicate that the

decision will be read to expand state court jurisdiction

further than it is constitutionally permissible. It is for

those reasons that a writ of certiorari should issue to the

Louisiana Supreme Court.

D. The LHWCA has Preempted State Law so Com-

pletely in this Area that it Precludes State

Court Exercise of jurisdiction Over this Cause

of Action:

33 U.S.C. Section 905 (a) provides:

The liability of an employer prescribed in Section 904

of this title shall be exclusive and in place of all other

liability of such employer to the employee, his legal

representative, husband or wife, parents, depen-

dents, next of kin, and anyone otherwise entitled to

recover damages from such employer at law or in

admiralty on account of such injury or death, except

that if an employer fails to secure payment of com-

pensation as required by this chapter, an injured

employee, or his legal representative in case death

results from the injury, may elect to claim compensa-

tion under the chapter, or to maintain an action at

law or in admiralty for damages on account of such

A A dij

15

injury or death. In such action the defendant may not

plead as a defense that the injury was caused by the

negligence of a fellow servant, or that the employee

assumed the risk of his employment, or that the

injury was due to the contributory negligence of the

employee. For purposes of this subsection, a contrac-

tor shall be deemed the employer of a subcontrac-

tor’s employees only if the subcontractor fails to

secure the payment of compensation as required by

Section 904 of this title.

Section 905 (a) reflects the Congressional intent that

the employer’s liability be exclusive under the LHWCA.

In this case, respondent has filed a claim under the

LHWCA and received a hearing by the Administrative

Law Judge. A decision and order was rendered on May

12, 1988 (See attached Appendix D). At that time, benefits

were denied and respondent has appealed the decision to

the Benefits Review Board pursuant to 33 U.S.C. Section

921. Petitions for review of board orders are heard by the

United States Court of Appeals, 33 U.S.C. Section 921 (C).

It is clear from the completeness of the statute that Con-

gress has intended that the entire process of adjudicating

the claim and the appellate procedure would take place

in the federal sphere. Respondent, apparently growing

impatient with the appellate procedure provided by the

LHWCA, has brought suit under the Louisiana Workers’

Compensation Law. To allow such action by respondent

would be a circumvention of the appellate process of the

Longshoremen and Harbor Workers’ Compensation Act

and render Section 905 (a) meaningless.

Section 905 (a) and the appellate procedure set forth

in the Act, would be severely undermined if all future

claimants are allowed to first seek a federal remedy and

then move into state court jurisdiction without allowing a

16

final word to be said by the federal courts. The Pennsyl-

vania Superior Court in Christman v. Dravo Corp., 466

At.2d 209 (Pa. Super. 1983) was faced with a similar issue

and held that the Longshoremen and Harbor Workers’

Compensation Act had exclusive jurisdiction over a claim

brought by a widow first under the LHWCA. The widow

brought suit in state court while her appeal was pending

under the LHWCA in the federal forum. The Pennsylva-

nia Court held that to allow such a circumvention of the

LHWCA was not intended by Congress when it enacted

Section 905 (a).

Even if there may be concurrent jurisdiction over

certain types of injuries and certain types of employees, it

does not follow that state court can exercise concurrent

jurisdiction over a claim which has been brought first

under a federal statute. The doctrine of federal preemp-

tion would also work to preclude such a result. Federal

law preempts state law in three different areas: (1) when

Congress explicitly expresses its intent to preempt state

law; Shaw v. Delta Air Lines, 463 U.S. 85, 95, 103 S.Ct. 2890,

2899, 77 L.Ed.2d 490, 500 (1983); (2) when the federal

statute may be so comprehensive or pervasive that Con-

gress’ intent to displace state law may be inferred; Rice v.

Santa Fe Elevator Corp., 331 US 218, 230, 67 S.Ct. 1146,

1152, 91 L.Ed. 1447, 1459 (1947); or (3) when state law

conflicts with federal law.

Section 905 (a) expresses the clear and manifest pur-

pose of Congress to preempt state law in this area and the

exercise of dual authority would be repugnant to the

Congressional objective stated in the LHWCA. Once an

action is brought under the LHWCA, it is committed to

the federal sphere. By allowing respondent to leave the

federal sphere and bring his action under the state

17

worker’s compensation laws at this stage would usurp

the federal nature of the LHWCA intended by Congress

and would place state law in direct conflict with the

federal act. This is not a result that was intended by

Congress, nor any court which has considered this issue.

Accordingly, based upon the statutory dictates of the

LHWCA of the appellate procedure, respondent is pre-

cluded from seeking a state court remedy at this point.

,%

vr

CONCLUSION

The lower court impermissibly denied petitioner’s

declinatory exception of jurisdiction and held that state

court jurisdiction exists over respondent’s cause of action.

In doing so, the lower court contravened Article III, Sec-

tion 2 of the United States Constitution and the estab-

lished precedent of this Court. The lower court has also

ignored federal precedent which holds the LHWCA has

exclusive jurisdiction over injuries occurring Over naviga-

ble waters. Because the lower court’s decision conflicts

with the United States Constitution, the precedent of this

Court and a federal appellate court, this Court should

grant a writ of certiorari to review this decision. :

Respectfully Submitted:

Gary M. Zwalin

Counsel of Record

EuizABETH D. Mackay

Duptass, WITMAN & ZwWaIiN

2900 Three Lakeway Center

3838 N. Causeway Boulevard

Metairie, Louisiana 70002

(504) 832-3700

Counsel for Petitioner

July 27, 1989

LEE el

la

APPENDIX “A”

JUDGE THOMAS J. MALIK

40th Judicial District

Parish of St. John the Baptist

EXHIBIT NO. 4

[SEAL]

CHARLES R. McMASTER, NO. 23,643 DIVISION B

an State of Louisiana

ba ‘ /s/ Evelyn G. Sutton

ROBERT MILLER, AETNA CLERK OF COURT

LIFE & CASUALTY

JUDGMENT ON EXCEPTION

(Filed January 3, 1989)

This matter came for hearing on the 13th day of

December, 1988, President:

Vincent W. Farrington, Jr. for Plaintiff/Respondent

Elizabeth D. Mackay, for Mover/Defendant.

Aetna Casualty & Surety Co. has urged an exception

citing a lack of jurisdiction of the Plaintiff’s subject of a

claim under the provisions of Title 23 (State Workmens

Compensation Act.).

With the facts this court has before it, the most con-

clusive is a finding by the Administrative Law Judge that

the Plaintiff is not entitled to benefits under the Long-

shore and Harbor Worker’s Act. I find Defendant's excep-

tion without merit. This opinion does not, nor is it

necessary, to agree or disagree with the judgment of

Commissioner Glenn, I have however, through the fed-

eral findings been furnished certain facts which I find

helpful to this Court.

2a

In the present posture of this case, I am determining

an exception without benefit of any depositions or sworn

testimony. In Louisiana an employee need not be a part of

the defendant’s regular organization in order to claim

compensation. This Plaintiff certainly appears to be a

necessary party to Defendants ”. . . course and scope of

employer’s trade or occupation.” (See King v. American

Tack Corp., 144 So. 283), thus I find sufficient presump-

tion that Plaintiff was an employee and the exception of

Aetna Casualty & Surety is dismissed.

/s/ Thomas J. Malik

JUDGE

3a

APPENDIX “B”

Application For Writs

EXHIBIT NO. 11

No. 89-C-120

COURT OF APPEAL, FIFTH CIRCUIT

STATE OF LOUISIANA

RECEIVED MAR 22 FEB 28 1989

1989 DUPLASS,

WITMAN & ZWAIN

/s/ Glyn Rae Waguespack

Dep. Clerk

CHARLES R. MCMASTER, JR.

VERSUS

ROBERT MILLER AND ASSOCIATES, ET AL

In Re AETNA CASUALTY & SURETY COMPANY Apply-

ing for SUPERVISORY WRITS DIRECTED TO THE HON-

ORABLE THOMAS J. MALIK, JUDGE 40th J.D.C.,

PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISI-

ANA, DIVISION “B”, NUMBER 23,643

Gary M. Zwain

Elizabeth D. Mackay

Attorneys at Law

2900 Three Lakeway Center

3838 N. Causeway Blvd.

Metairie, Louisiana 70002

(504) 832-3700

Attorneys for Relator

Vincent W. Farrington, Jr.

Attorney at Law

2626 N. Arnoult Road, Suite 200

Metairie, Louisiana 70002

(504) 885-7311

Attorneys for Respondent

4a

Gretna, Louisiana

March 21, 1989

Writ denied. The case is gov-

erned by Logan v. Louisiana Dock

Co., Inc., No. 88-C-1506 (La.,

Jan. 30, 1989) __ So.2d __.

/s/ LAC

CHIEF JUDGE LAW-

RENCE A. CHEHARDY

/s/ TCW Jr

JUDGE THOMAS C.

WICKER, JR.

/s/ SG

JUDGE SOL GOTHARD

A TRUE COPY

GRETNA MAR 21 1989

/s/ Genevieve L. Venette

COURT OF APPEAL, FIFTH CIRCUIT

5a

APPENDIX “C”

The Supreme Court of the State of Louisiana

CHARLES R. McMASTER, JR.

VS. NO. 89-CC- 0765

ROBERT MILLER AND ASSOCIATES et al

IN RE: Aetna Casualty & Surety Co.; - Defendant(s);

Applying for Supervisory and/or Remedial Writs; Parish

of St. John Baptist 40th Judicial District Court Div. “B”

Number 23,643; to the Court of Appeal, Fifth Circuit,

Number 89-CA-0120

April 28, 989

Denied.

PFC

JAD

JLD

JCW

LFC

MARCUS J., would grant the writ.

Supreme Court of Louisiana

April 28, 1989

/s/ Frans J. LaBranche, Jr.

Clerk of Court

For the Court

6a

APPENDIX “D”

U.S. Department of Labor

[Seal]

Office of Administrative Law Judges

Heritage Plaza, Suite 530

111 Veterans Memorial Blvd.

Metairie, LA 70005

(504) 589-6201

In the Matter of

CHARLES McMASTER

: Case No. 87-LHC-319

Claimant

OWCP No. 7-103769

against

ROBERT MILLER & ASSOC.

Employer

AETNA CASUALTY &

SURETY

Carrier

ee ee ae ae ee ee a a ae a

Vincent William Farrington, Jr., Esq.

2626 N. Arnoult Rd., Suite 200

Metairie, Louisiana 70002

For the Claimant

Gary M. Zwain, Esq.

Suite 2900

Three Lakeway Center

3838 N. Causeway Blvd.

Metairie, Louisiana 70002

For the Employer/Carrier

Before: JAMES W. KERR, JR.

Administrative Law Judge

Fi iti

7a

DECISION AND ORDER - DENYING BENEFITS

This is a claim for compensation benefits under the

Longshore and Harbor Workers’ Compensation Act, 33

U.S.C. §901 et seq. (hereinafter “Act”). This claim is

brought by Charles McMaster (hereinafter “Claimant”)

against Robert Miller & Associates (hereinafter “Respon-

dent”) and Aetna Casualty & Surety (hereinafter “Car-

rier”). The formal hearing was conducted at Metairie,

Louisiana on January 22, 1988 at which time the parties

were represented by counsel, afforded opportunity to

present documentary evidence, examine and cross-exam-

ine witnesses, and make oral argument. This decision is

based upon the entire record.!

After evaluating the entire record, there is sufficient

evidence to support the following stipulations: (1) Claim-

ant was injured on March 25, 1986; (2) Claimant notified

Respondent of his injury on May 5, 1986; (3) Respondent

filed its notice of controversion on September 5, 1986; (4)

Respondent has paid no medical or compensation bene-

fits to Claimar*, (5) Claimant’s average weekly wage at

the time of his injury was $617.87; and (6) Claimant has

not returned to his regular employment since his injury.

The unresolved issues in this proceeding are:

(1) Whether there existed an employer/employee

relationship between Respondent and Claimant;

1 The following abbreviations will be used throughout this

decision when citing the evidence of record: Claimant's Exhibit

- “CX,” Respondent’s Exhibit - “RX”, Transcript of the Hearing

- “Tr.”, and Court’s Exhibit - “CT’s.”

8a

(2) Whether §4(a) of the Act bestows liability upon

Respondent for Claimant’s disability;

(3) Whether Respondent filed a timely notice of

controversion;

(4) Whether Claimant was injured within the course

and scope of employment with Respondent;

(5) Nature and extent of Claimant’s disability, if

any;

(6) Penalties and attorney fees.

STATEMENT OF THE CASE

Claimant graduated from high school in 1971. Claim-

ant originally worked in air conditioning. He then went

to welding school. Claimant went to work for Z. O.

Metcalf, a barge repair fleeting operation, as a welder in

late 1974 or early 1975. He later worked for Federal Barge

Line, a barge fleeting line, and Hamilton Fiberglass, a

company subcontracting wash and repair work for Fed-

eral Barge Line and Pelican Fleeting, another barge fleet-

ing line. When Hamilton Fiberglass left Pelican Fleeting,

Claimant took over the wash, repair, and related opera-

tions. When Pelican Fleeting was sold, and the name

changed to Elmwood Fleeting, Claimant left to form his

own company after having worked for Elmwood about

six months. At the time Claimant started his barge clean-

ing service, he had about 11 years experience in the

cleaning, inspection, and repair of barges.

Barge fleeting lines are companies that receive loaded

barges, deliver them to an elevator, pick them up when

empty, clean and repair them, and secure them in tow to

it di ; oT

9a

go to other loadings. Claimant offered a rather unique

service in that he offered a more economical alternative to

barge fleeting lines. Claimant and his employees would

travel to the empty barge, clean it, inspect it, and make

minor repairs. By Claimant's going to the barge, the barge

line would save the charges for towing.

Claimant’s company worked for a number of differ-

ent barge lines from August, 1985 until March, 1986.

From January 6, 1986 until March 25, 1986, only 8 out of

124 barges cleaned or inspected were Respondent’s

barges.

Claimant would hire three to five people on a barge-

to-barge basis. He would charge $300 per barge, plus

- more if it was a coal or a roll-top barge. If repairs were

made, he would also charge for them. The price would be

calculated at the end of the job. Respondent would pay

Claimant, withholding no deductions for income tax or

Social Security.

Claimant considered himself self-employed. He felt

that he was the one responsible to maintain safety and to

see that the jobs were done properly. He viewed Respon-

dent and the other barge lines as customers to whom he

was selling a service. He held himself out to those with

whom he did business as the Bayou Barge Company.

Claimant fir,t did work for Respondent in 1985. In

March, 1986, John R. Weber, Jr., was manager of mainte-

nance and claims for Respondent. He testified that Robert

Miller & Associates is in the business of hauling freight

by barge, contracting with barge owners to manage the

barges and then selling their freight hauling services to

shippers. Robert Miller and Associates has ten employees

| ‘ i

10a

in an office in St. Louis, Missouri. They hire various

fleeting services to clean and repair the barges.

On the date of his injury, Claimant was cleaning a

barge for Respondent at the Mississippi River Grain Ele-

vator in Myrtle Grove, Louisiana. He had just finished the

job and was climbing out of the barge. Claimant fell from

the ladder and into the barge. Dr. David W. Aiken, Jr., a

physician who is board certified in orthopedic surgery,

saw Claimant on the day of his injury. Claimant suffered

closed, comminuted fractures of both heel bones. Dr.

Aiken testified that Claimant is totally disabled from the

job he was performing when injured, or any job involving

climbing, long walking, or heavy carrying. He can proba-

bly do sedentary work, be a college student, or operate

his own business as long as he does not walk or perform

manual labor. Dr. Aiken recommended that Claimant

undergo triple arthrodesis of both ankles. This operation

would limit Claimant’s ability to move his ankles, but it

would eliminate 80-90% of Claimant’s pain.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The threshhold question in this case is whether an

employee-employer relationship existed between Claim-

ant and Respondent at the time of Claimant's injury.

Claimant alleges that an employee-employer relationship

existed because the work performed by him was neces-

sary and integral to Respondent's business. Respondent

contends that such a relationship did not exist because

Claimant was self-employed and Respondent was merely

Claimant’s customer.

[oe me Ay diets rere

lla

The proper test in the Fifth Circuit for finding an

employer/employee relationship is the “relative nature of

the work” test. Haynie v. Tideland Welding Service, 631 F.2d

1242, 1243 (5th Cir. 1980); Oilfield Safety and Machine Spe-

cialties, Inc., 625 F.2d 1248, 1253 (Sth Cir. 1980) (hereinaf-

ter cited as Oilfield Safety). The test was summarized in

Oilfield Safety as follows:

In determining the existence of an employee-

employer relationship pursuant to this test, one

examines the nature of the claimant’s work in rela-

tion to the regular business of the employer. This

examination must focus on two distinct areas: [A] the

nature of the claimart’s work and [B] the relation of

that work to the alleged employer’s regular business.

In evaluating [A] the character of a claimant’s work.

a court should focus on various factors, including the

skill required to do the work, the degree to which the

work constitutes a separate calling or enterprise, and

the extent to which the work might be expected to

carry its own accident burden. In analyzing [B] the

relationship of the claimant’s work to the employer’s

business the factors to be examined include, among

others, whether the claimant’s work is a regular part

of the employer’s regular work, whether the claim-

ant’s work is continuous or intermittent, and whether

the duration of claimant’s work is sufficient to

amount to the hiring of continuing services as distin-

guished from the contracting for the completion of a

particular job.

Oilfield Safety, 625 F.2d at 1253. For the reasons described

below, the Court finds that Claimant is not an employee

of Respondent under the Act.

Claimant was in the business of cleaning, inspecting,

and repairing barges, work typically performed by barge

fleeting companies. Respondent is a barge line in the

business of hauling freight. Claimant’s business’s smail

a

12a

size alone does not make it any less of a separate enter-

prise from Respondent than any other fleeting company.

These distinct types of companies would generally be

viewed as separate business enterprises expected to carry

their own accident burdens.

Claimant's work is not highly skilled. Neither does it

require special equipment other than buckets, brooms,

ropes, gloves, ladders, and shovels. However, the Court

finds that this does not outweigh the fact that barge

fleeting companies and barge lines are distinctly separate

enterprises. Therefore, the Court finds that the nature of

Claimant’s work indicates that Claimant is not an

employee of Respondent.

Likewise, the Court finds that the relation of that

work to the Respondent's regular business also indicates

that Claimant is not an employee of Respondent. Claim-

ant testified that he considered Respondent to be one of

his many customers. Respondent paid Claimant without

withholding income tax or social security. Claimant paid

self-employment taxes on his income. Claimant paid his

own employees. Claimant’s business and Respondent

treated each other as distinct and separate business enti-

ties. In addition, Claimant’s work for Respondent was

intermittent and insufficient to constitute the hiring of

continuing services.

Even though the Court finds that Claimant is not an

employee of Respondent under the Act, Section 4(a) pro-

vides “[i]n the case of an employer who is a subcontrac-

tor, only if such subcontractor fails to secure the payment

of compensation shall the contractor be liable for and be

required to secure the payment of compensation.” 33

13a

U.S.C. 904(a)(1988). Claimant contends that he did not

secure the payment of compensation and also that he was

a subcontractor of Respondent. Therefore, he argues,

Respondent is still liable to him for compensation.

However, Claimant is not an employee of himself or

his business. Claimant’s business is a sole proprietorship.

A person cannot be both employer and employee under

the Act. Duncan v. D & K Foreign Auto Repair, 17 BRBS 40,

41 (1985). In the case of general partnerships and sole

proprietorship, the dual capacity doctrine does not apply

because the business is not a separate legal entity. Dun-

can, 17 BRBS at 42. Therefore, Claimant cannot recover

from Respondent under §4(a) of the Act because he can-

not be an employee of a subcontractor under the Act.?

Based on the foregoing findings of fact, conclusions

of law, and the entire record, the Court enters the follow-

ing Order.

ORDER

It is hereby ORDERED, ADJUDGED and DECREED

that the claim for benefits filed by Charles McMaster is

hereby DENIED.

Entered this 19th day of May, 1988, at Metairie,

Louisiana.

/s/ James W. Kerr, Jr.

JAMES W. KERR, JR.

Administrative Law Judge

JWK:dgc

d/16

2 The Court specifically refrains from deciding whether

claimant is a subcontractor under §4(a) of the Act.

‘re

14a

CERTIFICATE OF FILING AND SERVICE

I certify that on May 24 1989 the foregoing Decision

and Order was filed in the Office of the Deputy Commis-

sioner, Seventh District Office and a copy thereof was

mailed on said date by certified mail to the parties and

their representatives at the last known address of each as

follows:

Charles McMasters, 2225 Yorktowne Dr., LaPlace, La

70068

Claimant

Robert Miller and Associates, 7980 Clayton Rd., Suite 211,

St. Louis, MO 63117

Employer

Aetna Casualty and Surety, P. O. Box 6001, Metairie, LA

70009

Insurance Carrier

Vincent Farrington, Jr., Esq., 2626 N. Arnoult Rd., Suite

200, Metairie, LA 70002

Attorney for Claimant

Gary M. Zwain, Esq., 3838 N. Causeway Blvd., Suite 2900,

Metairie, LA 70002

Attorney for Employer/Insurance Carrier

A copy was also mailed by regular mail to the following:

Judge James W. Kerr, Jr., Office of the Administrative Law

Judges, U. S. Department of Labor, Heritage Plaza, Suite

530, 111 Veterans Memorial Boulevard Metairie, Louisi-

ana 70005

/s/ Donnette S. Glenn

~ DONNETTE S. GLENN

Deputy Commissioner

15a

Seventh Compensation District

U. S. Department of Labor

EMPLOYMENT STANDARDS

ADMINISTRATION

Office of Workers’ Compensation Program

l6a

APPENDIX “E”

U. S. DEPARTMENT OF LABOR

BENEFITS REVIEW BOARD

CHARLES MCMASTER,

Claimant

VERSUS ”

ROBERT MILLER & ‘

ASSOCIATES,

Employer .

AETNA CASUALTY & ra

SURETY,

Carrier *

NOTICE OF APPEAL

TO: Ms. Linda M. Meekins

Clerk of Benefits Review Board

U. S. Department of Labor

Room 757

Van Guard Building

1111 20th Street, N. W.

Washington, D. C. 20036

Honorable James W. Kerr, Jr.

Administrative Law Judge

U. S. Department of Labor

Office of Administrative Law Judges

Heritage Plaza, Suite 530

111 Veterans Memorial Boulevard

Metairie, Louisiana 70005

Mr. Gary Zwain

Attorney at Law

Three Lakeway Center

Suite 2900

3838 N. Causeway Boulevard

Metairie, Louisiana 70002

CASE NO.: 87-LHC-319

OWCP NO.: 7-103769

es ee amen ee nt tt atresia nina.

17a

Mr. Charles McMaster

2225 Yorktowne Drive

Laplace, Louisiana 70068

Robert Miller and Associates

7980 Clayton Road

Suite 211

St. Louis, Missouri 63117

Ms. Donnette S. Glenn

Deputy Commissioner

U. S. Department of Labor, OWCP

Longshore and Harbor Workers

701 Loyola Avenue, Room 13032

New Orleans, Louisiana 70113

NOTICE IS HEREBY GIVEN that claimant, Charles R.

McMaster, Jr., hereby appeals to the Benefits Review

Board, U. S. Department of Labor, from the Decision and

Order denying benefits issued by the Administrative Law

Judge, James W. Kerr, Jr. on May 27, 1988, which Decision

and Order denying benefits was filed with the Deputy

Commissioner, Seventh Compensation District, on May

24, 1988. 7

On May 27, 1988, the claimant, Charles R. McMaster,

Jr., filed a Motion for Reconsideration of the said Decision

and Order denying benefits. A Decision and Order deny-

ing benefits upon said motion was rendered by Adminis-

trative Law Judge Kerr on June 23, 1988 and said Decision

and Order was filed in the Office of the Deputy Commis-

sioner, Seventh Compensation District on June 29, 1988.

18a

RESPECTFULLY SUBMITTED:

/s/ Vincent W. Farrington, Jr.

VINCENT W. FARRINGTON, JR.

2626 North Arnoult Road

Suite 200

Metairie, Louisiana 70002

Telephone: (504) 885-7311

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and forego-

ing has been forwarded to all counsel of record, by plac-

ing same in the U. S. Mail, properly addressed and

postage prepaid, this 8th day of July, 1988.

/s/ Vincent W. Farrington, Jr.

Vincent W. Farrington, Jr.

19a

APPENDIX “F”

40TH JUDICIAL DISTRICT COURT FOR THE

PARISH OF ST. JOHN

STATE OF LOUISIANA

NO.: 23643 DIVISION “B” DOCKET NO.:

CHARLES R. McMASTER, JR.

VERSUS

ROBERT MILLER AND ASSOCIATES and

AETNA LIFE & CASUALTY

FILED:

DEPUTY CLERK

PETITION FOR WORKER’S COMPENSATION BENEFITS

(Filed September 15, 1989)

The Petition of Charles R. McMaster, Jr., domiciled in

the Parish of St. John, State of Louisiana, respectfully

represents that:

4

Made defendants herein are:

(a) Robert Miller and Associates, Inc. (hereinafter

referred to as “Miller”’), a foreign corporation doing busi-

ness within this State.

(b) Aetna Casualty and Surety Company, a foreign

insurance company authorized to do and doing business

in the State of Louisiana.

Il.

At all material times herein, Aetna Casualty and

20a

Surety Company (hereinafter referred to as “Aetna”) was

the worker’s compensation insurer of Miller and is liable

in solido with the said defendant on the cause of action

hereinafter stated.

If.

On March 25, 1986, the plaintiff was employed by

Miller to clean a barge, which was located in Myrtle

Grove, Louisiana at the Mississippi Grain Elevator.

IV.

On the aforementioned date, the plaintiff fell into the

barge from a ladder and suffered severe injuries to both

his left and right heels. The plaintiff was working for

Miller as an independent contractor doing manual labor

at the time of the accident and was performing his duties

within the course and scope of his employment with

Miller.

V.

As a result of the accident and injury, the plaintiff has

been disabled from any type of work. The defendants

have not paid any compensation nor medical benefits to

the plaintiff.

VI.

The plaintiff has incurred medical expenses and may

have to undergo surgery in the future, for which defen-

dants should be held responsible.

rot

|

PND een iy ka beige

2la

VIL.

Defendant and its insurer were duly notified of this

accident and were furnished satisfactory proof of loss.

Vill.

The plaintiff’s earnings for the 26-week period prior

to the date of the accident were $22,993.75. The plaintiff

avers that he is entitled to the maximum compensation

rate allowable.

IX.

As a result of plaintiff’s accident, the plaintiff filed a

claim under the Longshore and Harbor Workers’ Com-

pensation Act. The claim proceeded to a formal hearing at

which the plaintiff was denied benefits.

WHEREFORE, plaintiff prays that:

1. Defendants, Robert Miller and Associates, Inc.

and Aetna Casualty and Surety Company, be duly cited

and served with a copy of this Petition and that, after due

proceedings are had, there be judgment herein in favor of

the plaintiff, Charles R. McMaster, Jr., and against the

defendants, declaring the plaintiff to be totally disabled;

2. Plaintiff have judgrient against the defendants

for all past, present and future compensation benefits and

medical expenses with legal interest from the date of

judicial demand until paid;

22a

3. Plaintiff have judgment against the defendants

for penalties, attorney’s fees and costs of this litigation as

provided by law.

RESPECTFULLY SUBMITTED:

/s/ Vincent W. Farrington, Jr.

VINCENT W. FARRINGTON, JR.

2626 North Arnoult Road

Suite 200

Metairie, Louisiana 70002

Telephone: (504) 885-7311

STATE OF LOUISIANA

PARIS OF JEFFERSON

BEFORE ME, personally came and appeared Charles

R. McMaster, Jr., who after being duly sworn did state

that he has read the foregoing Petition and that all of the

allegations of fact contained therein are true.

/s/ Charles R. McMaster, Jr.

CHARLES R. McMASTER, JR.

Sworn to and subscribed

before me, this 9th

day of September, 1988.

/s/ Vincent W. Farrington, Jr.

NOTARY PUBLIC

PLEASE SERVE:

Robert Miller and Associates

7930 Clayton Road

Suite 211

St. Louis, Missouri 63117

Through the Louisiana Longarm Statute

23a

Aetna Casualty and Surety Company

Through the Secretary of State,

Walter Fox McKeithen

A TRUE COPY

DEPUTY CLERK OF COURT

40th JUDICIAL DIST. COURT

PARISH OF ST. JOHN THE BAPTIST, LA.