Brief in Opposition to Petition for Writ of Certiorari — Hahn v. Ross Island Sand & Gravel Co.

awww 1958

re the Supreme Court

of the United States

so ame SZ

HARRY A. HAHN,

, etitioner,

m

ROSS ISLAND SAND & GRAVEL CO.,

1 corporation,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

H Trade Bldg.

/ Oregon

.s for Respondent

SUBJECT INDEX

Page

Question Presented 1

Statement of the Case 1

Argument 2

I This action does not involve special and im-

portant consideration and arises only because cf

unique Oregon statutes 2

II. The decision of the Oregon Supreme Court is

not in error

qn

Conclusion

TABLE OF CASES

Page

Davis vs. Department of Labor & -ndustries, 317 U.S.

249, 63 S. Ct. 225 5,6

Mark vs. Portland Gravel Co., 130 Ore. 11, 278 Pac.

986 (1929) 7

Martinson vs. State Industrial Accident Commission,

154 Ore. 423, 60 P.2d 972 (1936) 7

Parker vs. Motor Boat Sales, 314 U.S. 244, 62 S. Ct.

221 5

Penn R. R. Co. vs. O’Rourke, 34 U.S. 334, 73 S. Ct.

302 7

oo

Pope & Talbot vs. Hawn, 346 U.S. 406, 74 S. Ct. 202

Sanderson vs. Sause, 114 Fed. Supp. 849, 852 (1953)

Wilkerson vs. McCarthy, 336 U.S. 53, 69 S. Ct. 413,

419 2

oo

STATUTES

33 USCA Secs. 901-950

33 USCA Sec. 903 )

ORS 654.305 et seq. 8

MISCELLANEOUS

Gilmore and Black, The Law of Admiralty 6

— eee

a

In the Supreme Court

of the United States

No.

HARRY A. HAHN,

Petitioner,

Vv.

ROSS ISLAND SAND & GRAVEL CO.,

a corporation,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

QUESTION PRESENTED

The sole question presented in this Court, and the

Oregon Supreme Court, is whether the petitioner is

barred from maintaining a damage action on the grounds

that the sole and exclusive liability of the respondent to

the petitioner is that liability provided for under the

Longshoremen & Harbor Workers’ Compensation Act

(33 USCA Secs. 901-950).

STATEMENT OF THE CASE

In the Supreme Court of Oregon, the petitioner ar-

gued that the waters upon which the petitioner was

injured wer not “navigable waters of the United States”

2

within the meaning of the Longshoremen & Harbor

Workers’ Act (33 USCA Sec. 903). Petitioner does not

make that direct argument in his petition; however, pe-

titioner in his “Facts [Material to the Question Pre-

sented” (Petition, pp. 5-6) makes crroneous statements

of fact or states misleading conclusions, all dealing with

the use of the iagoon and supposedly bearing on the

question of navigability. The Supreme Court of Oregon

stated:

“It is contended first, on the part of the plaintiff,

that the injury did not occur upon ‘navigable wat..s

of the United States’, but as to this we think that

there can be little doubt.” (Peti on pp. 29-30)

(Emphasis supplied)

ARGUMENT

This action does not involve special and important con-

siderations and arises only because of unique Oregon statuies.

Petitioner seeks to attach great importance to this

action by contending that it will result in many employ-

ees being required to accept compensation benefits

rather than the net proceeds of state damage actions.

Various members of this Court have stated that such

a result is commendable rather than censorable. For

example, the concurring opinion in Wilkerson vs. Mc

Carthy, 336 U.S. 53, 69 S. Ct. 413, 419, stated:

“This cruel and wasteful mode of dealing with in-

dustrial injuries (negligence damage actions) has

long been displaced in industry generally by the in-

suranee*:principal that underlies workmen's com:

pensation laws.”

3

Petitioner pleads that the decision of the Oregon

Court places many thousands of “uncovered persons”

in the serious predicament of going for years without

any “redress, damages, or compensation’ (Petition p.

11).

It is respectfully submitted that this plea is a patent

attempt to mislead the Court. Petitioner's position really

is that petitioner chose initially not to accept the bene-

fits payable under the Longshoremen & Harbor Work-

ers’ Compensation Act. Rather, the petitioner decided

to attempt to exchange immediate monthly compensa-

tion payments for the chance of a later, larger lump sum

jury verdict. Petitioner, by this petition, is asking this

Court to make his attempt at this exchange pay off.

When petitioner fails, petitioner will immediately re-

ceive the three years’ benefits he was initially entitled

to under the Longshoremen & Harbor Workers’ Com-

pensation Act and then he will receive the current bene-

fits to which he is entitled. Petitioner has one year from

the final determination of this litigation to file a claim

for benefits under the Longshoremen & Harbor Work-

ers’ Act (Longshoremen & Harbor Workers’ Act, Sec-

tion 913(a)(d) ).

This Court is usually requested to grant life or free-

dom. ‘itis petitioner is requesting that he be granted a

doubtful financial advantage; an advantage denied most

of his fellow injured employees and one which can possi-

bly be gained only because of the peculiarities of Oregon

law.

The Oregon compensation lews are certainly peculiar,

4

if not completely unique. A State Industrial Accident

Fund exists for the payment of compensation benefits.

Employers electing to contribute to this State Fund are

rewarded by being rendered immune from damage ac-

tions by injured employees. Employers not electing to

contribute to the State Fund, but rather carrying private

insurance coverage to pay workmen's compensation

benefits or by being self-insured, are dissuaded from

such a practice by being not immunized from damage

actions by injured employees. The statute does not x-

quire employers electing not to contribute to the State

Fund to carry workmen’s compensation insurance cov-

erage or to be self-insured. However, the long accept:

ance of the workmen’s compensation principle, the

force of organized labor, and the economics of the mat-

ter, have resulted in all Oregon employers of hazardous

occupations carrying either state, private or se!f-insured

coverage for workmen’s compensation benefits. The pe-

titioner was not an “uncovered” employee, nor are

others in hazardous occupations “uncovered” employees

in Oregon.

Actually, the petitioner here had three initial choices

of possible remedies. He could have received compensa-

tion payable under the Longshoremen & Harbor Work-

ers’ Compersation Act; this he chose to temporarily

reject. He could have claimed compensation benefits

according to the schedule set by Oregon law from fe-

spondent’s private insurance carrier (these benefits for

most cases are less than those payable under the Fed-

eral act. just as are benefits payable from the State

Fund). Of course, it is not known what response the in-

5

surance carrier would have made to such request. Peti-

tioner instead chose the third method, a damage action,

available to petitioner only because this respondent

elected not to contribute to the State Industrial Acci-

dent Fund, but rather to carry private insurance cover-

age for workmen's compensation benefits.

This case, as well as all others in this general field,

is an extremely interesting exercise in legal gymnastics.

The parties, of course, consider it exceedingly important

to them. This case, however, does not involve the solu-

tion of any important industrial or legal problem.

Il.

The decision of the Oregon Supreme Court is not in error.

The opinion of the Oregon Supreme Court was based

upon two premises; if the physical facts of the case

placed the case in the “twilight zone,” the “twilight

zone’ concept was not intended to apply here where the

alternatives were a damage action on one hand and

compensation under the Longshoremen & Harbor Work-

ers’ Act on the other. The second proposition of the

Oregon Supreme Court was that the case was not within

the twilight zone, but was “‘a case to which the Long-

shoremen & Harbor Workers’ Act clearly applies” (Peti-

tion p. 46).

The Oregon Court did not believe that this Court

intended to extend Davis vs. Department of Labor &

Industries, 317 U.S. 249, 63 S. Ct. 225, to grant a prefer-

ence to an employee of one remedy over another. Parker

vs. Motor Boat Sales, 314 U.S. 244, 62 S. Ct. 221, and

6

Davis vs. Department of Labor, supra, granted an in-

jured employee or the representative of a deceased em-

ployee a remedy and a remedy for which the employer

had coverage. A contrary decision would have either de-

nied the rernedy, as a matter of finances, or would have

subjectea the employer to a financial responsibility he

had not foreseen. In Davis, it could have subjected him

to fine or imprisonment.

In the latest known work on this subject, the au-

thors, Gilmore and Black, in The Law of Admiralty,

page 357, state, after tracing the history of cases in this

twilight area:

“The Court has not yet articulated its reason

for refusing to extend the twilight zone to cover

workers wl. dse choice of rermedy is between a com-

pensation proceeding and an action under FELA,

the Jones Act or maritime law. Nevertheless, there

is a substantial reason for the refusal. Where the

choice of remedy is between two compensation acts,

the employer’s liability is not seriously affected by

the rule that allows claims to be brought indiffer-

ently on either side: he is liable without fault mn

either case but only for the administratively deter-

mined award. Where, however, the choice is be-

tween a compensation proceeding and a court at-

tion with right of trial by jury there is a vast differ-

ence in what the employer may be ultimately held

liable for. Twilight zone theory where the choice

between two compensation acts protects the class

of workers without prejudicing their employers.

The same theory, where the choice is between com-

pensation and a jury trial, would protect other

classes of workers, but at a substantial cost to em:

ployers. That far the court has not been willing to

gO.

7

lf this case is held to be in the “twilight zone,” it is

difficult to conceive of any set of facts which will not

be in the “twilight zone.” A holding that this set of

facts falls within the twilight zone will mean that no

employee of an Oregon employer carrying private cover-

age or self-insured will initially accept benefits under

the Longshoremen & Harbor Workers’ Act. The pressure

will certainly be present to first try his luck at a damage

action and only if he fails in this will he accept Long-

shoremen & Harbor Workers’ compensation benefits.

The petitioner's work was always on navigable water.

True, the former ‘‘maritime-but-local” doctrine caused

the Oregon Supreme Court to hold that a plaintiff who

was working on a dredge in the river scooping up sand

was confined to the state compensation law for his

remedy. Mark vs. Portland Gravel Co., 130 Ore. 11, 278

Pac. 986 (1929). On the other hand, during this same

“maritime-but-local” time, the Oregon Supreme Court

held that assisting in the loading of a vessel, as the peti-

tioner was doing in this case, was maritime and not a

= matter of purely local concern. Martinson vs. State In-

| dustrial Accident Commission, 154 Ore. 423, 60 P.2d

972 (1936). The respondent was certainly an employer

that “has any employees engaged in maritime service’’

(Sec. 902(4) ). This fact was thought to be important

by this Court in Penn R. R. Co. vs. O'Rourke, 34 US.

334, 73 S. Ct. 302. This employee, the petitioner, and

this employer, the respondent, had a constant and di-

rect relation with interstate cominaerce on navigable

water.

8

This action was brougi:t under a statute known as

the Oregon Employers’ Liability Act, Oregon Revised

Statute 654.305, et seq. This law places a substantially

higher standard of responsibility on the employer, and

in other substantial ways changes th: usual duties owed

by the employer and employee. This Court has heid

that a damage action for injuries incurred on navigable

waters is governed by Federal maritime law. Pope @

Talbot vs. Hawn, 346 U.S. 406, 74 S. Ct. 202. A reversal

of the Oregon Supreme Court decision would necessarily

involve the application of the Oregon employers’ iia-

bility law to a maritime tort. This would destroy any

semblance of uniformity in maritime law. One of the

Federal judges in the District of Oregon wrote:

“In my view, the application or the Oregon Em-

ployers’ Liability Act with the higher standards re-

quired of it in connection with the use of machinery

and equipment would destroy the uniformity of

the maritime law and is, therefore, not applicable

to a situation in which a workman is killed on navi-

gable waters within the territorial limits of Oregon.”

Sanderson vs. Sause, 114 Fed. Supp. 849, 852

(1953).

CONCLUSION

Petitioner’s contention that this decision involves ai

important legal principle affecting many persons is

without substance. Petitioner has sought a remedy

thought to be more advantageous than that normally

available to an injured employee and a remedy that 1s

only possibly available by reason of the peculiarity of

the Oregon Workmen’s Compensation Act. The Long:

9

shoremen & Harbor Workers’ Act provides an adequate

and petitioner's sole remedy.

Petition for a writ of certiorari to the Supreme Court

of the State of Oregon shculd be denied.

Respectfully submitted,

ROBERT T. MAvuTZ,

ARNO H. DENECKE,

1001 Board of Trade Building,

Portland 4, Oregon,

Attorneys for Respondent.