Opposition Brief — Johnson v. Duluth, Missabe & Iron Range Railway Co.

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Supreme Sourt, US.

FILED @

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No. 89-419 JOSEPH F, SPANIOL, Sites

CLERK

——

IN THE

Supreme Court of the Gnited Siates

KEITH A. JOHNSON,

Petitioner,

v.

DULUTH, MISSABE AND IRON RANGE RAILWAY

COMPANY,

5 Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MINNESOTA

Brief In Opposition To

Petition For Writ Of Certiorari

D. Edward Fitzgerald

HANFT, FRIDE, O’BRIEN, HARRIES,

SWELBAR & BURNS, P.A.

1000 First Bank Place

130 West Superior Street

Duluth, Minnesota 55802

Attorneys for Respondent

1989 — Northwest Printing Co., 3010 2nd St. No., Minneapolis, MN 55411 — 588-7506

QUESTIONS PRESENTED

1. Are railroad employees whose injuries are covered

by the Longshoremen and Harbor Workers’ Compensation

Act, 33 U.S.C. § 901, et seq., precluded from bringing an

action under the Federal Employers Liability Act, 45

U.S.C. § 51, et seq.?

2. Is an employee who repairs or maintains equipment

used for ship loading engaged in “maritime employment”

within the meaning of U.S.C. § 902(3)?

TABLE OF CONTENTS

Page

III F858 Wl a a. bee i

Parties to. the Proceeding ................ ee i

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Argument

I. Employees Whose Injuries are Covered by the

LHWCA Cannot Maintain an FELA Action.. 5

A. The Legislative History of the Longshore-

men and Harbor Workers’ Compensation

Act Demonstrates that Congress Intended

it to Provide the Exclusive Remedy for

Railroad Workers Whose Injuries were

Covered by the Act ..............545. 5

B. Public Policy Requires that Employees

| Whose Injuries are Covered Under the

LHWCA be Precluded From Maintaining

I abs omen pen eeaceees 9

II. Workers Engaged in the Repair and Mainte-

nance of Equipment Necessary to Shiploading

are Engaged in Maritime Employment Within

the Meaning of the LHWCA .............. 11

ee sn wa tales Oe TRG 13

iii

TABLE OF AUTHORITIES

Cases:

Baker v. Pacific Far East Lines, Inc., 451 F.Supp. 84

fo Bes Pk Re: | ee ee ee eee

Davis v. Department of Labor, 317 U.S. 249 (1942) ..

Harmon v. Baltimore & Chio R. Co., 560 F.Supp. 914

(1983), aff'd. 741 F.2d 1398 (D.C. Cir. 1984) ..8

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

Johnson v. Duluth, Missabe and Iron Range Railway

Company, 437 N.W.2d 727 (Minn. App. pans

review denied May 24, 1989 ................

Noguieria v. New York, New Haven, Hartford R. :

oe SP fk Fee are ae 6, 9,

Northeast Marine Terminal Co. v. Caputo, 432 U.S.

te as ago ok bck be a5 DAO ad X : 3

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

(nk oat papel apes gneiss ait Cec ey ea : 3

P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 78 (1979) .

Price v. Norfolk & W. Ry. Co., 618 F.2d 1059 (4th

CAE I chia od ots ocd si be UCR Re eosin eos ss

Sealand Services, Inc. vy. Director ETC, 685 F.2d 1121

eee en ee

Southern Pacific Co. v. Jenson, 244 U.S. 205 (1916)...

Vogelsang v. Western Maryland Ry. Co., 531 F.Supp.

11, aff'd. 670 F.2d 1347 (4th Cir. 1982) ........

Washington v. W.C. Dawson & Co., 264 U.S. 219

SUE NG aks CO MEUEEES CNS Ch Bs Cav ivecccce

Constitutional and Statutory Provisions:

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9

10

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45 US.C. § 53... cece eee e cece eens 10

Federal Employers Liability Act, 45 U.S.C.§51....2, 3

Legislative History:

98 Stat. 1639-1655, P.L. 98-426 (98th Con.— 2nd

Ns kek sw cine si ges. abe 6S OO eee) 8

House Report No. 98-570, Part 1, p. 5, 98th Cong. —

pL Ore ee eee Te ee | eee nee 9

Senate Committee on Education and Labor, Report to

Accompany S38, Report No. 98-81, 98th Congress,

MEE Dihie Rab 6k 0a-06 0b 64h ee nek’ tae saan 9

Sen. Rep. No. 973 (69th Cong.— Ist Sess.) ...... 6

IN THE

Supreme Court of the Anited States

No. 89-419

KEITH A. JOHNSON,

Petitioner,

v.

DULUTH, MISSABE AND IRON RANGE RAILWAY

COMPANY,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MINNESOTA

Brief In Opposition To

Petition For Writ Of Certiorari

PARTIES TO THE PROCEEDING

The parties to the proceeding in the Minnesota Court

of Appeals are indicated on the caption. Transtar, Inc.

is the parent company of Respondent. Respondent has no

subsidiaries. Its affiliates are as followers: Bessemer and

Lake Erie Railroad Company; Birmingham Southern Rail-

road Company; Central Radio Telegraph Company;

Cuyahoga Dock, Inc.; Elgin, Joliet & Eastern Railway

Company; Fairfield Southern Company, Inc.; The Lake

Terminal Railroad Company; McKeesport Connecting

Railroad Company; Mobile River Terminal Company,

inc.; Mon Valley Railway Company; Pittsburgh & Con-

neaut Dock Company; Tracks Traffic and Management

2

Services Company; Union Railroad Company; USS Great

Lakes Fleet, Inc.; and Warrior & Gulf Company.

The following companies hold the voting shares of

Respondent’s parent company, Transtar, Inc.: USX Cor-

poration; Blackstone Capital Partners, L.P. and Black-

stone Transportation Partners.

OPINION BELOW

Johnson v. Duluth, Missabe and Iron Range Railway

Company, 437 N.W.2d 727 (Minn. App. 1989), review

denied May 24, 1989. The Order of the Minnesota

Supreme Court denying review (A17), and the Decision

of the trial court (A1-A7) were not reported.

JURISDICTION

The Minnesota Supreme Court denied further review

of this case on May 24, 1989 (A17). Petitioner invoked

the jurisdiction of this Court under 28 U.S.C. § 1257(3),

and filed his original Petition for Certiorari on August

18, 1989. The Clerk refused to docket the Petition be-

cause of its failure to comply with the Supreme Court

rules and a corrected Petition was mailed to attorneys for

Respondent on September 6, 1989, and was received on

September 8, 1989.

STATUTES INVOLVED

1. The Longshoremen and Harbor Workers’ Compen-

sation Act, 33 U.S.C. § 901, et seq.

2. Federal Employers Liability Act, 45 U.S.C. § 51,

et seq.

STATEMENT OF THE CASE

Petitioner claims that he was injured while working for

Respondent as a bridge and building mechanic at its ship-

3

ioading and storage facility (A3). Respondent transports

iron ore from the Minnesota Iron Range to the facility

which is located adjacent to Lake Superior (Ali). Rail-

road cars are unloaded at the facility’s train unloading

station (Jd.) A conveyor system then moves the ore pel-

lets directly to the dock for loading into the holds of vessels

or to a storage area (A11-A12). Petitioner claims to have

been injured while repairing a dust collecting bag house

at the train unloading station (A12). His duties included

performing repairs and maintenance to the several bag

houses located on the facility, walking the conveyor system

looking for defective rollers, and occasionally helping to

replace the rollers on the conveyor system (A12).

Petitioner brought an action against Respondent secking

to recover for his injuries under the Federal Employers

Liability Act, 45 U.S.C. § 51, et seq. (hereinafter “FELA”).

The trial court granted Respondent’s Motion for Sum-

mary Judgment, finding as a matter of law that the Pe-

titioner was engaged in “maritime employment” within the

meaning of 33 U.S.C. § 902(3) and that the exclusive

remedy for the damages sought in the action was under

the Longshoremen znd Harbor Workers’ Compensation

Act, 33 U.S.C. § 901, et seq. (hereinafter “LHWCA”)

(A1-A5). The Minnesota Court of Appeals affirmed the

trial court, Johnson v. Duluth, Missabe and Iron Range

Railway Company, 437 N.W.2d 727 (Minn. App. 1989),

and the Minnesota Supreme Court denied further review

(Al17).

SUMMARY OF ARGUMENT

If the LHWCA provides a remedy for a railroad em-

ployee’s on-the-job injury, the employee cannot maintain

an action under FELA. The legislative history of the

LHWCA demonstrates that Congress intended that where

railroad workers were provided a remedy under the

LHWCA for on-the-job injuries, such workers should be

precluded from maintaining an FELA action. As origi-

nally introduced, the bill specifically excluded railroad

employees from its coverage, but that exclusion was elimi-

nated when the bill was finally passed. In 1972, coverage

under the LHWCA was expanded by extending coverage

to certain areas adjoining the navigable waters. Despite

the decisions of this Court dating back to 1930, Congress

failed to include any provision excluding railroad employ-

ees from coverage under the Act. Although the lower courts

consistently applied the expanded Act to railroad workers

engaged in maritime employment in the specified areas

adjoining the navigable waters of the United States after

1972, Congress again failed to exclude railroad workers

when the Act was substantially amended in 1984. By elim-

inating an exclusion for railroad workers in the original

Act and subsequently failing to insert such an exclusion

in amendments specifically dealing with the jurisdictional

issue, Congress has demonstrated its intent to include rail-

road workers engaged in maritime employment within the

LHWCA and preclude them from bringing an FELA

action.

Public policy supports the conclusion that railroad work-

ers injured on the job while engaged in maritime employ-

ment should be covered under the LHWCA and precluded

from bringing an FELA action. The LHWCA embodies

5

the principles of a modern workers’ compensation system,

while the FELA limits liability to situations where the

employer is at fault. As a remedial act typical of modern

workers’ compensation statutes, the LHWCA is liberally

construed in favor of coverage. In exchange for liability

without regard to fault, benefits are limited to a statutory

schedule and the employer’s liability under the Act is ex-

clusive. Thus, the public policy which supports the exclu-

sive remedy provision contained in the LHWCA requires

that employees who are covered under the LHWCA be

precluded from maintaining an action under FELA.

Workers who repair and maintain equipment necessary

for loading ships are engaged in maritime employment

within the meaning of the LHWCA. The recognition that

modern cargo-handling techniques have moved the work

of many maritime employees landward was a principal

purpose in extending coverage of the Act in 1972. Con-

sistent with this remedial purpose, the term “maritime

employment” must be construed to include those who re-

pair and maintain equipment necessary to shiploading.

ARGUMENT

I.

EMPLOYEES WHOSE INJURIES ARE COVERED BY THE

LHWCA CANNOT MAINTAIN AN FELA ACTION.

A. The Legislative History Of The Lorgshoremen and

Harbor Workers’ Compensation Act Demonstrates

That Congress Intended It To Provide The Exclusive

Remedy For Railroad Workers Whose Injuries Are

Covered By The Act.

In Southern Pacific Co. v. Jenson, 244 U.S. 205 (1916),

this Court held that neither the state workers’ compensa-

tion statute nor the Federal Employers Liability Act ap-

plied to a railroad employee injured while loading a vessel.

The state statute was held inapplicable because the mat-

ter fell exclusively within federal admiralty jurisdiction.

An attempt to remedy maritime accidents under state

workers’ compensation laws was held unconstitutional in

Washington v. W.C. Dawson & Co., 264 U.S. 219 (1923).

When the bill which became the Longshoremen and Harbor

Workers’ Compensation Act in 1927 was pending in Con-

gress,

-, . . The importance of the policy of compensation

acts, and their advantages in providing for appropri-

ate compensation in the case of injury or death of

employees without regard to the fault of the employ-

er, were distinctly recognized.

Noguieria v. New York, New Haven, Hartford R.R. Co.,

281 U.S. 128, 136 (1930).

As originally passed by the Senate, the bill which be-

came the LHWCA contained a provision excluding railroad

employees injured while engaged in interstate or foreign

commerce. Sen. Rep. No. 973 (69th Cong. — Ist Sess.).

This exception was eliminated from the bill when finally

passed. (/d.)

Relying on the elimination of the exclusion, the pres-

ence of other, specific exclusions, and the importance of

the policy of providing compensation for on-the-job injuries

without regard to the fault of the employer, this Court held

in Noguieria, supra, that the LHWCA provided the exclu-

sive remedy for a railroad worker injured on navigable

waters of the United States.

In 1972, the LHWCA was significantly amended for

the first time since 1927. Prior to 1972, the LHWCA

applied to injuries occurring on the navigable waters of

the United States so long as the employer and employees

engaged in maritime employment. Pennsylvania R.R. Co.

v. O’Rourke, 344 U.S. 334 (1952). Persons injured on

piers or in terminals adjoining the navigable waters were

not covered by the Act and frequently were without any

workers’ compensation remedy. Davis v. Department of

Labor, 317 U.S. 249 (1942).

Recognizing that many state workers’ compensation

acts provided inadequate amounts of compensation and

that modern cargo handling techniques had moved the

work of many maritime employees landward from the

water’s edge, coverage under the Act was substantially

expanded. See generally, Northeast Marine Terminal Co.

v. Caputo, 432 U.S. 249, 262-263. The term “navigable

waters” was expanded to include “any adjoining pier. wharf,

dry dock, terminal, building way, marine railway, or other

area customarily used by an employer in loading, unloading

or repairing a vessel.” 33 U.S.C. § 903A. To narrow the

class of persons within this expanded area who were en-

titled to benefits under the LHWCA, Congress restricted

the definition of “employee” to “any person engaged in

maritime employment, including any longshoremen or other

person engaged in longshoring operation and any harbor

worker, including a ship repairman, ship builder and ship

breaker... .” 33 U.S.C. § 902(3).

After the expansion of the LHWCA’s coverage in 1972,

the lower federal courts have consistently held that rail-

road workers injured in the specified areas adjoining the

navigable waters are precluded from bringing an FELA

8 —

action if they are engaged in maritime employment within

the meaning of the LHWCA. Price v. Norfolk & W. Ry.

Co., 618 F.2d 1059 (4th Cir. 1980); Harmon v. Balti-

more & Ohio R. Co., 560 F.Supp. 914 (1983), aff'd. 741

F.2d 1398 (D.C. Cir. 1984); Vogelsang v. Western Mary-

land Ry. Co., 531 F.Supp. 11, aff'd. 670 F.2d 1347 (4th

Cir. 1982).

Congress again amended the LHWCA in 1984. 98 Stat.

1639-1655, P.L. 98-426 (98th Con.— 2nd Sess.). Al-

though a number of amendments were added to exclude

certain types of employees from the definition of “employ-

ees engaged in maritime employment” contained in Sec-

tion 902(3), no exclusion was enacted for railroad em-

ployees or for workers engaged in the repair or maintenance

of shiploading equipment. /d., § 2. According to the House

Report, except for the exceptions specifically enacted, case

law regarding coverage under the Act was to remain

undisturbed:

The Committee underscores that the exclusions from

the definition of “employee” contained in the amend-

ments to section 2(3) of the Act and the amendments

to section 3 of the Act (discussed below) are intended

to be narrowly construed. Except as specifically de-

tailed in those amendments, it is the intention of the

committee neither to expand nor to contract the cur-

rent coverage of the Longshore Act. This Committee

concurs with the view of the Senate Committee on

Labor and Human Resources in this regard which

stated “with the Committee making only limited

changes to (these sections) of the Act, it is obvious

that a large body of decisional law relative to tradi-

tional maritime employers and harbor workers re-

mains undisturbed.” (Senate Committee on Educaticn

9

and Labor, Report to Accompany S38, Report No.

98-81, 98th Congress, Ist Session, page 26.) 5

House Report No. 98-570, Part 1, p. 5, 98th Cong. —

2nd Sess.

Congress cannot be presumed to have been unfamiliar

with this Court’s decisions in Noguieria and O’Rourke

when it enacted the 1972 amendments substantially ex-

panding coverage under the Act. Nor can it be presumed

to have been unaware in 1984 of the Court of Appeals’

decisions precluding an FELA action for railroad workers

injured on land while engaged in maritime employment.

When viewed against the back drop of these decisions, th

failure of Congress to specifically exclude railroad work-

ers from the Act while enacting amendments dealing with

coverage under the Act sufficiently indicates the congres-

sional intent that railroad workers who are injured while

engaged in maritime employment within the meaning of

the LHWCA are precluded from maintaining actions un-

der FELA.

B. Public Policy Requires That Employees Whose Injuries

Are Covered Under The LHWCA Be Precluded From

Maintaining An FELA Action.

The LHWCA has all the characteristics of a modern

workers’ compensation system. The employee has a right

of recovery which is impaired by neither the employee’s

contributory negligence nor the employer’s lack of fault,

if the employee’s injury or disease arises out of and in the

course of employment. U.S.C. § 903(a); 33 U.S.C. § 902.

In exchange for compensation without regard to fault. the

employee gives up the right to sue his employer in tort.

10

and the employer is assured of a fixed, exclusive liability

in exchange. 33 U.S.C. § 905; 33 U.S.C. § 908; see gen-

erally, Baker v. Pacific Far East Lines, Inc., 451 F.Supp.

84 (89-90) (N.D.Cal. 1978).

As with virtually all workers’ compensation acts pro-

viding similar, reciprocal benefits for employer and em-

ployee, the Act provides that “the liability of an employer

(under the Act) shall be exclusive and in place of all other

liability of such employer to employee . . .” 33 U.S.C. §

905(a). Moreover, it is only when the employer fails to

pay compensation under the Act that the employee can

maintain a legal action. (Jd.) In those circumstances,

unlike FELA, the employer may not defend on the basis

of the employee’s contributory negligence. (/d.)

The Federal Employers Liability Act is based on prin-

ciples entirely different from those which underlie the

LHWCA. Under FELA, there can be no recovery unless

the employer is at fault. 45 U.S.C. § 51. In addition, con-

tributory negligence on the part of the employee reduces

any award. 45 U.S.C. § 53.

The policy of the LHWCA is to provide certain, but

fixed, remedies for on-the-job injuries. The advantages of

providing appropriate compensation without regard to the

fault of the employer have been distinctly recognized by

Congress and this Court. Noguieria, supra, at 136. The

Act itself recognizes that a certain remedy for the employce

in exchange for a limitation of liability for the employer is

a more appropriate basis for dealing with maritime injurics

than under liability acts. The policies inherent in the

LHWCA preclude the implication of such an additional

remedy against the employer.

11

WORKERS ENGAGED IN THE REPAIR AND MAINTENANCE

OF EQUIPMENT NECESSARY TO SHIPLOADING ARE EN-

GAGED IN MARITIME EMPLOYMENT WITHIN THE MEAN-

ING OF THE LHWCA.

Petitioner concedes that the “situs” requirement for

coverage of the LHWCA is satisfied. The occupational or

“status” requirement is also satisfied. Because Petitioner’s

job required him to repair and maintain equipment neces-

sary for shiploading, he was thus engaged within maritime

employment within the meaning of 33 U.S.C. § 902(3).

The focus of this definition is on the nature of the work-

er’s activity.

This section defines the Act’s occupation require-

ments. The term “maritime employment” refers to the

nature of a worker’s activities. Thus section 2(3)

uses the phrase “longshoremen or other workers en-

gaged in longshoring operations” as one example of

workers who engage in maritime employment no

matter where they do their job.

P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 78 (1979). Work-

ers responsible for some portion of the land to ship move-

ment of cargo are engaged in “maritime employment.”

Persons moving cargo from ship to land transporta-

tion are engaged in maritime employment. A worker

responsible for some portion of that activity is as

much an integral part of the process of loading or

unloading a ship as a person who participates in the

entire process.

P.C. Pfeiffer v. Ford, supra, at 82-83. Moreover, the statute

and the 1972 amendments are to be liberally construed in

12

favor of coverage under the t. Northeast Marine Ter-

minal Co. v. Caputo, 432 U.S. — -, 268 (1977).

In extending coverage of the LHWCA in 1972, Con-

gress recognized that the advent of modern technology

had changed the nature of maritime employment. As a

consequence of this policy underlying the extension of cov-

erage landward, the federal courts have uniformly held

that the repair and maintenance of equipment necessary

to shiploading is maritime employment within the mean-

ing of the Act. See generally, Sealand Services, Inc. v.

Director ETC, 685 F.2d 1121, 1123 (9th Cir. 1982);

Harmon v. Baltimore & Ohio R.R., 560 F.Supp. 914,

aff'd 741 F.2d 1398 (D.C. Cir. 1984).

Petitioner asserts that a more restrictive test for cov-

erage was adopted by this Court in Herb’s Welding, Inc.

v. Gray, 470 U.S. 414 (1985). In that case, the Court

specifically noted that the claimant’s work had nothing to

do with the loading or unloading process. Jd. at 425. In

referring to the LHWCA, the Court noted that:

Its purpose was to cover those workers on the situs

who are involved in the essential elements of loading

or unloading.

Id. at 423. The context makes it clear that the language

merely indicates that involvement with the overall process

of loading or unloading is essential, not that occupations

less immediately necessary to the loading or unloading

process are not covered by the Act.

The maintenance and repair of the sophisticated machin-

ery necessary to load bulk cargo onto vessels at Respon-

dent’s shiploading facility is an integral part of the loading

process. The development of such modern cargo handling

13

technology was itself one of the principal reasons for the

expansion of coverage under the LHWCA in 1972. Since

Petitioner’s work in maintaining and repairing this tech-

nology was a necessary part of the process of loading

vessels, he was engaged in maritime employment within

the meaning of the Act.

CONCLUSION

Petitioner’s regular employment involved the repair and

maintenance of equipment necessary to Respondent’s ship-

loading operations. He was therefore engaged in maritime

employment within the LHWCA in an area used by Re-

spondent for loading vessels. The LHWCA therefore pro-

vides coverage for his claimed on-the-job injury and the

exclusive liability of his employer. Therefore, Petitioner

cannot maintain an action under FELA.

Respectfully submitted,

D. Edward Fitzgerald

HANFT, FRIDE, O’BRIEN, HARRIES,

SWELBAR & BURNS, P.A.

1000 First Bank Place

130 West Superior Street

Duluth, MN 55802-2094

(213) 722-4766

Attorneys for Respondent