Opposition Brief — American Home Insurance Group v. Aaron

Supreme Court of the United States

October term. 1989

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QUESTIONS PRESENTED

(1). Was the United States Fifth Circuit Court of

Appeals correct in remanding the case in question to

Louisiana State District Court?

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TABLE OF CONTENTS

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SUMMARY OF THE ARGUMENT ................. 1

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TABLE OF AUTHORITIES

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CASES:

Aaron v. National Union Fire Ins. Co. of Pitts-

burgh, 867 F.2d. 1157 (5th Cir. 1989)............. 4,5

Avce v. Aero Lodge No. 735, 390 U.S. 557, 88 S.Ct.

Ee 4,5

Caterpillar v. Williams, 482 U.S. 386, 107 S.Ct.

Ds 5 3

Franchise Tax Board v. Laborer’s Vacation Trust,

463 U.S. 23, 103 S.Ct. 2841 27 L.Ed. 2d 420 (1983)..... 3

Lowe v. Ingalls Shipbuilding, 723 F.2d 1173 (5th

Ne cae buebeavoceses 5

Powers v. South Central United Food & Commer-

cial Workers Union, 719 F.2d 760 (5th Cir. 1983)..... 4

SUMMARY OF THE ARGUMENT

This is a case in which the plaintiffs’ original petition

sought damages as a result of the wrongful death of Wash

Aaron. The plaintiffs sought damages from the Lake

Charles Stevedores based upon the Louisiana Workmen's

Compensation Act provisions for intentional injury. The

petition clearly identified the claim as one in tort.

The defendants sought removal of the case based

upon the defense that the claim should be governed by

the exclusivity of the provisions of the Longshoreman’s

Harbor Worker’s Compensation Act (LHWCA). Appel-

lees maintain that the defense of the exclusivity of the Act

is insufficient to create original jurisdiction in the Federal

Court. Plaintiffs’ original complaint should be the sole

basis for federal jurisdiction or the lack thereof.

Under the “well-pleaded complaint rule” the original

petition is the sole test as to whether the claim creates a

federal question of jurisdiction. In the present case no

federal question was raised by the original petition and

insomuch as the petition did not invoke any federal ques-

tion, the removal was improper and the remand ordered

by the Fifth Circuit Court of Appeals should be affirmed.

,

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STATEMENT OF THE CASE

A petition for damages resulting from a wrongful

death was filed in Louisiana 14th Judicial District Court

based upon a claim by the surviving spouse and surviv-

ing children of a deceased longshoreman.

Plaintiffs-Appellees elected to seek recovery under

the provisions of the Louisiana Workman’s Compensation

Act, Section 1032, and Louisiana Civil Code Article 2315.

All of the plaintiffs in the original petition were domi-

ciled in the State of Louisiana and the defendants, except

for Caterpillar, Inc. and the various foreign insurers, were

domiciled within the State of Louisiana.

The defendant, American Home Insurance Groups, A

Division of National Union Fire Insurance Company, and

the Lake Charles Stevedores, Inc., successfully removed

the plaintiffs’ cause of action to the Western District

Court of the State of Louisiana, basing its request for

removal on the exclusivity of the Longshore and Harbor

Worker’s Act. In addition, the same defendants sought to

be dismissed from the cause of action based upon the

immunity provided under the LHWCA. The U. S. Magis-

trate for the Western District in Lake Charles, ruled that

the removal was proper and dismissed the plaintiffs’

cause of action as it pertaitied to the Lake Charles Stev-

edores, Inc. and American Home Insurance Groups, A

Division of National Union Fire Insurance Company.

The United States District Court Judge for the West-

ern District of the State of Louisiana ruled that the find-

ings and recommendations of the Federal Magistrate

were proper, denying the plaintiffs’ Motion for Remand

and affirming the Magistrate’s dismissal of the cause of

action.

The United States Court of Appeal for the Fifth Cir-

cuit reversed the District Court’s removal of the case

from the 14th Judicial District Court and ordered the

matter remanded. The plaintiffs-appellees come before

this Court in opposition to the defendant-appellant’s

application for Writ of Certiorari.

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ARGUMENT

In the present case, the surviving spouse and heirs of

Wash Aaron filed a state court claim. They alleged in

particular, intentional and negligent tortuous conduct on

the part of three defendants, including the appellant. The

petition did not mention the Longshore and Harbor

Workers’ Compensation Act (LHWCA) or any other fed-

eral claim. However, the defendants were successful in

removing this case on the grounds that their defense to

the claim arose under the exclusivity of the act. It is

appellees’ position that the district court improperly

removed the state court action because the original peti-

tion was one which could not have been filed in federal

court. Since there was no diversity jurisdiction, a federal

question had to have been present in order for the

removal to be proper. Caterpillar v. Williams, 482 U.S. 386,

107 S.Ct. 2425, 96 L.Ed. 2d 318 (1987)

The long-recognized “well-pleaded complaint” rule

provides that it is the plaintiff’s petition which governs

the determination of jurisdiction. It is well established

that if the petition contains no issue of federal law, there

is no federal question, and the district court does not

have jurisdiction over the matter. Franchise Tax Board v.

Laborer’s Vacation Trust, 463 U.S. 23, 103 S.Ct. 2841, 27

L.Ed. 2d 420 (1983). Even if a federal defense, such as the

exclusivity of the LHWCA, is raised by the defendant,

there is no creation of federal question jurisdiction. See

Powers v. South Central United Food & Commercial Workers

Union, 719 F.2d 760, 764 (5th Cir. 1983).

Appellants now argue that the removal of plaintiffs’

claim was proper insomuch as this case arises under an

exception to the well-pleaded complaint rule. Appellants

argue that the petitioners filed their claim in bad faith;

that is, their petition raised a state court claim merely to

conceal the fact that their claim was truly federal. Appel-

lees disagree. There is no federal cause of action which

the appellees seek. Because there was no diversity, the

plaintiffs’ petition could not have been brought in federal

court based upon any cause of action sought by the

plaintiffs. There can be no concealment of a federal cause

of action when no federal cause of action exists.

In addition, appellants have argued that the LHWCA

is so preemptive as to fall within the (Avco exception),

Avco v. Aero Lodge No. 735, 390 U.S. 557, 88 S.Ct. 1235, 20

L.Ed. 2d 126 (1968). That notwithstanding, appellants do

not argue that the LHWCA contains civil enforcement

provisions similar to the enforcement provisions pro-

vided in the Avco case. In Avco, the court was faced with

what was clearly preemptive language in Section 301 of

the LMRA. Appellees argue that there is no specific fed-

eral cause of action set forth in the LHWCA that would

be available to the plaintiffs in the present case, such as

was available to the plaintiffs in Avco. Appellees aver that

the Appellate Court was correct in finding that the

LHWCA contained no specific jurisdictional grant similar

to that found in Avco. Aaron v. National Union Fire Ins. Co.

of Pittsburgh, 867 F.2d 1157 (Sth Cir. 1989).

Furthermore, though the Fifth Circuit did not see fit

to make such a finding, it is still the position of the

Appellees that the jurisprudential history of the LHWCA

is indicative of a move away from the type of preemption

that is made part of the LMRA. Since the adoption of the

LHWCA, the exclusivity provisions of Section 905 have

been broadened such that there have been numerous

exceptions to that exclusivity. It is Appellees position that

if the Congressional intent was to preempt all state action

as it concerns injuries to maritime workers injured in

holds of vessels while located in port on navigable water,

the act could have easily been amended to include the

specific language found in the LMRA.

Finally, the Fifth Circuit Court of Appeals has now

decided for a second time that the defense of the preemp-

tive nature of the LHWCA, when asserted as a defense to

a State Court claim, should not overcome the well-

pleaded complaint rule. Lowe v. Ingalls Shipbuilding, 723

F.2d 1173 (5th Cir. 1985) and Aaron v. National Union Fire

Ins. Co. of Pittsburgh, 867 F.2d 1157 at 1166. In both cases,

the plaintiffs originally sought relief under State Court

causes of action and the defendants obtained removal

, based upon the exclusivity and preemptive nature of the

LHWCA. The Appellees maintain that the application of

the well-pieaded complaint rule and the holding that th

LHWCA could not be asserted as a defense for the pur-

pose of removal were correct. Appellees respectfully

argue that the Fifth Circuit properly remanded Appellees’

case to Louisiana State District Court based upon the

well-pleaded complaint rule and the failure of the present

case to fall within the Avco exception.

,

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CONCLUSION

Appellees respectfully urge that the Fifth Circuit

Court of Appeals was correct in remanding this matter to

State District Court for trial on the merits. We respectfully —

request that the Writ of Certiorari be denied.

Respectfully submitted,

/s/ Roce G. Burcess

3006 Country Club Road

P.O. Drawer 7820

Lake Charles, LA 70606

(318) 478-8888

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