Opposition Brief — Prevetire v. Weyher/Livsey Constructors, Inc.

No. 94-1267 EB 24 1095

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SUPREME COURT OF THE UNITED STA

October Term 1994

THOMAS C. PREVETIRE, °

Petitioner-Claimant,

WEYHER-LIVSEY CONSTRUCTORS, INC.,

Respondent-Employer,

and

EMPLOYERS INSURANCE OF WAUSAU,

A MUTUAL COMPANY,

Respondent-Carrier.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF IN OPPOSITION

February 24, 1995

Robert A. Rapaport, Esquire

Counsel of Record

Jimese L. Pendergraft, Esquire

KNIGHT, DUDLEY,

DEZERN & CLARKE, PL.L.C.

Smithfield Building, Suite 101A

6160 Kempsville Circle

Post Office Box 13109

Norfolk, Virginia 23506-3109

(804) 466-0464

Counsel for Respondents

LANTAGNE DUPLICATING SERVICES

801 East Main Street Suite 100 Richmond, Virgimia 23219 (800) 847-0477

QUESTION PRESENTED

Whether an employee involved in the construction of

a steam and electrical power plant, the primary Fp? na of

which was to provide power for the Norfolk Naval Shipyard,

is a "maritime employee” under the Longshore and Harbor

Workers’ Compensation Act, 33 U.S.C. §§ 901-950 (1988)?

TABLE OF CONTENTS

STATEMENT OF THE CASE ............. 2

REASONS TO DENY THE WRIT ........... 4

I, The court of appeals properly interpreted

and applied this Court’s precedent

regarding the Longshore Act’s "status"

test to the facts of this case. ...... 4

I. The decision of the court of appeals does

not create a conflict between the Fourth

Circuit and decisions of other circuits,

namely, the decisions in Graziano and

aa 8

Il. The decision of the Fourth Circuit is

not in conflict with its decisions in

Joyner, Price, and Pittman ....... 11

as a's be ea 6 4 8 0 4 6 0s 0 eo 15

Ww

TABLE OF AUTHORITIES

632 F.2d 1346 (Sth Cir. 1980),

cert, denied, 452 U.S. 915 (1981) ......... 8

Bradshaw v. McCarthy,

3 BRBS 195 (1976), petition for review denied,

547 F.2d 1161 (3d Cir. 1977)............ 9

607 F.2d 1087 (4th Cir. 1979), cert, denied, 446

Te °°" gi dean 12

ae

493 U.S. 40 (1989) ......... 4-9, 12, 14, 15

566 F.2d 890 (4th Cir. 1977) ............ 3

663 F.2d 340 (ist Cir. 1981) ............ 9

470 U.S. 414 (1985) ............-.. 5, 6

650 F.2d 750 (5th Cir. 1981), cert. denied,

mee tere ............cs-. 9

834 F.2d 372 (4th Cir. 1987) ............ 8

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easy iy Sate. ON ¥ oe asc de 9

B73 Fd 167 (4th Gir), oy ;

denied, 439 U.S. 979 (1978) ......... 9, 13

432 U.S. 200 (1977) ........ eee

622 F.2d 110 (Sth Cir. 1980) ........ ile

2 ea 5

i r, OWCP,

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618 F.2d 1059 (4th Cir. 1980) ...... 8, 12, 13

631 F.2d 1214 (Sth Cir. 1980) ........... 8

W. Vv ;

635 F.2d 552 (6th Cir. 1980) ............ g

Statutes:

Longshore and Harbor Workers’ Compensation Act,

33 U.S.C. § 902(3) (1988) ....... 2, 5, 6, 8

33 U.S.C. § 903(a) (1968). ............. 4

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No. 94-1267

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1994

THOMAS C. PREVETIRE,

Petitioner-Claimant

V.

WEYHER-LIVSEY CONSTRUCTORS, INC.

Respondent-Employer,

and

EMPLOYERS INSURANCE OF WAUSAU,

A MUTUAL COMPANY

Respondent-Carrier.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION

Respondents, Weyher-Livsey Constructors, Inc.,

(hereinafter "Weyher-Livsey" or "Employer") and

Employers Insurance of Wausau, a Mutual Company,

(hereinafter "Carrier")', by counsel, respectfully request that

this Court deny the Petition for a Writ of Certiorari which

seeks review of the Fourth Circuit’s opinion below. The

opinion of the Fourth Circuit in this case is reported at 27

F.3d 985 (4th Cir. 1994), and is reprinted in full in the

Petition for a Writ of Certiorari at Appendix A.

STATEMENT OF THE CASE

Prevetire filed a claim for compensation benefits

under the Longshore and Harbor Workers’ Compensation

Act (hereinafter "Longshore Act" or "LHWCA"), as the

result of a work-related injury which he suffered on

October 16, 1986. At the time of his accident, Prevetire

was employed by Weyher-Livsey, as a pipefitter. He was

working on a project involving the construction of a power

plant located within the confines of the Norfolk Naval

Shipyard, in Portsmouth, Virginia. The Employer and

Carrier denied liability for compensation benefits under the

LHWCA, asserting that Prevetire was not a "maritime

employee" as defined in § 902(3) of the Longshore Act.

A hearing on Prevetire’s claim was held before an

administrative law judge on December 4, 1989. Following

that hearing, the ALJ issued his decision and order on

April 2, 1990. See App. D, pp. 24a-33a.2 He denied

Prevetire’s claim under the LHWCA, holding that Prevetire

lacked status as a maritime employee. The ALJ found that

Prevetire’s work as a pipefitter engaged in the construction

of a power plant “does not qualify as having a realistically

significant relationship to’ traditional maritime activity

involving navigation and commerce on navigable waters."

'A full listing of the parties is provided in the caption and in the

"Parties" section of the Petition for a Writ of Certioran. There are no

parent or subsidiary companies to be listed, as required by Rule 29.1.,

for either respondent.

"References to the Appendix are to the Appendix contained in the

Petition for a Writ of Certiorari filed on January 24, 1995.

2

App. D, p. 32a. (cing j

Co., 566 F.2d 890, 895 (4th Cir. 1977)).

Prevetire appealed the decision of the ALJ to the

Benefits Review Board (hereinafter "the Board"). In a

decision and order dated May 12, 1993, the Board reversed

the ALJ, holding that Prevetire was a “maritime employee"

because he was engaged in the construction of a new power

plant which was to supply steam and electficity to the

shipyard. Therefore, the new power plant was maritime in

nature and, as a result, Prevetire’s work in constructing the

plant was also maritime in nature. Further, the Board held

that the construction of the power plant was essential to the

shipyard’s operation and therefore so was Prevetire’s work

in constructing the power plant. See App. C, p. 20a-21a.

The Employer and Carrier appealed the decision of

the Board to the Court of Appeals for the Fourth Circuit.

The case was decided on June 29, 1994. The court of

appeals reversed the decision of the Board, finding that the

Board’s expansive view of maritime employment is inconsis-

tent with the LHWCA and its 1972 amendments. See App.

A, p. 8a. The court found that Prevetire was not engaged

in maritime employment simply because the power plant

being built would eventually provide steam and electricity to

shipbuilding and ship repair operations. See Id. The activi-

ties being performed by Prevetire were not inherently

maritime. "The nature of a particular job is, of course,

defined in part by its location, . . . ; but to classify

Prevetire’s employment as maritime, merely because the

power plant that he was helping to construct would lie on

the seaward side of the shipyard’s boundary, would blur

together the ’situs’ and ’status’ requirements which Congress

intended to make distinct." Id. at 10a. Thus, the court

found that Prevetire’s suggested construction of the LHWCA

would effectively read the "status" requirement out of the

Act. See Id.

Prevetire filed a Petition for Rehearing with Sugges-

tion for Rehearing In Banc, arguing that the court’s opinion

3

misconstrued prior decisions of the United States Supreme

Court and is contrary to decisions of the Fourth Circuit and

other federal appellate courts i ae the LHWCA’s

status test. The original panel v to deny rehearing. A

member of the court requested a poll on the suggestion for

rehearing in banc, and a ma See ©

deny the rehearing in banc. ion ke. B, p. 15a

REASONS TO DENY THE WRIT

Prevetire has set forth insufficient reasons for this

Court to grant a writ of certiorari in this case. The Court

of Appeals for the Fourth Circuit did not misconstrue or

misapply prior precedent of this Court, namely, Chesapeake

, 493 U. S. 40 (1989), and its

decision is not in conflict with prior decisions of the Fourth

Circuit or other circuit courts of appeals. Although the

precise factual situation presented herein has not been

addressed before, there is substantial precedent on this issue,

which precedent was correctly interpreted by the Fourth

Circuit. Therefore, the Employer and Carrier respectfully

pray that this Court deny the Petition for a Writ of

Certiorari.

I. The court of appeals properly interpreted

and applied this Court’s precedent regard-

ing the Longshore Act’s "status" test to the

facts of this case.

The 1972 amendments to the Longshore Act

expanded the covered situs shoreward to include injuries not

only occurring on navigable waters, but those occurring on

"any adjoining pier, wharf, dry dock, terminal, building

way, marine railway, or other adjoining area customarily

used by an ae in loading, unloading, repairing,

dismantling, or ding a vessel." 33 U.S.C. § 903(a)

(1988). Recognizing that this new situs provision created a

broad geographic area of coverage, Congress also enacted a

limiting provision so that employees injured on a covered

4

situs could only receive compensation under the LHWCA if

7 an employee as defined in § 902(3). This section

defines employee, in pertinent part, as "any person engaged

in maritime employment, including any longshoreman or

other person engaged in longshoring operations, and any

harbor worker including a ship repairman, ship builder and

ship-breaker . . . ." 33 U.S.C. § 902(3) (1988). The

statute, however, sets forth no definition of "maritime

employment."

Since 1972, there have been four major Supreme

Court cases which have attempted to define the term

"maritime employment" in the context of a worker injured

on land. See Chesapeake & Ohio Ry. Co, v. Schwalb, 493

U.S. 40 (1989); Herb’s Welding, Inc. v. Gray, 470 U.S.

414 (1985); P.C. Pfeiffer Co, v. Ford, 444 U.S. 69 (1979);

and j , 432 US.

249 (1977). There have also been innumerable opinions

from the courts of appeals, which have sought to determine

Congress’ intent in enacting the 1972 amendments and,

thereby, define the limits of the term "maritime

employment."

The Herb’s Welding case discusses at length the

purpose of the maritime employment requirement as well as

its limitations.

Expansion of the definition of navigable

waters to include rather large shoreside areas

necessitated an affirmative description of the

particular employees working in those areas

who would be covered. This was the function

of the maritime employment requirement. But

Congress did not seek to cover all those who

breathe salt air. Its purpose was to cover

those on the situs who are involved in the

essential elements of loading and unloading .

. . . While ’maritime employment’ is not

limited to the occupations specifically men-

tioned in § 2(3), neither can it be read to

5

eliminate any requirement of a connection

with the loading or construction of ships. . .

. The amendments were not meant to ’cover

employees who are not engaged in loading,

unloading, repairing, or building a vessel, just

because they are injured in an area adjoining

navigable waters used for such activity... .’

We have never read ’maritime employment’

to extend so far beyond those actually

involved in moving cargo between ship and

land transportation.

470 U.S. at 423-24 (citations and footnotes omitted). The

Court re-emphasized that the maritime employment require-

ment is "an occupational test that focuses on loading and

unloading.” Id. at 424. Thus, the mere fact that the

claimant worked on a covered situs or in a marine environ-

ment does not afford status under the Longshore Act.

The more recent Schwalb decision reaffirmed the

vitality of the tests set forth in Herb’s Welding and its

predecessor cases. As stated by the court of appeals, this

Court "has repeatedly held that, aside from the occupations

specifically named in § 902(3), ‘land-based activity

occurring within the § 903 situs will be deemed maritime

aie if | :

unloading a vessel.’”" App. A, p. 7a (quoting 493 U.S. at

45-46) (emphasis added)). "In Schwalb, the Court held ’that

employees who are injured while maintaining or repairing

equipment essential to the loading or unloading process are

covered by the Act’ because they ’are engaged in activity

that is an integral a of and essential to those overall

processes.’" Id. at 8a. (quoting Schwalb, 493 U.S. at 47).

Prevetire, however, asked the court of appeals to extend

Schwalb and hold that a pipefitter who was employed in the

construction of a power plant was engaged in work that was

an integral or essential part of shipyard operations merely

because the power plant would ultimately provide steam and

electricity for the shipyard. The court properly determined

that such an expansive view of maritime employment is

inconsistent with the LHWCA and its 1972 amendments.

In Schwalb, this Court held that railroad employees

who maintained and repaired equipment used in the loading

of coal from railcars onto ships, were an integral part of and

essential to the overall loading and unloading process of the

ships. The Court noted that while the machinery used was

not operating properly, or was being repaired, the loading

process stopped. Therefore, the repair work was an essen-

tial function covered by the LHWCA. See 493 U.S. at 47-

48. In the present case, there is not the same essential

connection between the work being performed by Prevetire

and the operation of the shipyard. Although energy from

the power plant would ultimately be used to run the ship-

yard’s operations,’ the shipbuilding and repair processes did

not and would not have stopped without construction of a

new power plant. The shipyard had existed for years

without the power plant being constructed and would have

continued its work, uninterrupted, even if the plant had

never been built. Something is essential when it is indis-

pensable or unavoidable. In the present case, the work

being performed by Prevetire at the time of his injury was

not indispensable to the operations of the shipyard. As

stated by the court of appeals, Prevetire’s pipefitting is far

removed from traditional LHWCA activities such as long-

shoring, and was of a nature not significantly altered by the

marine environment. See App. A, p. 9a. The only connec-

tion between Prevetire’s work and traditional maritime

activities is that power from the plant would eventually be

used by the shipyard. Prevetire argues that this connection

is enough to make the work he was performing essential to

the operations of the shipyard. However, the Employer and

Carrier maintain, as the court of appeals found, that this

connection is too tenuous.

*Some of the electricity generated by the power plant was also to be

sold to users outside the shipyard.

As noted by the court of appeals, if the power plant

had been built just outside the shipyard’s boundary rather

than just inside it, as it easily could have been, Prevetire’s

job would not have changed at all. See App. A, p. 10a.

The court of appeals properly determined that to hold

Prevetire covered by the Longshore Act would "blur

together the ’situs’ and ’status’ requirements which Congress

intended to make distinct... ., and would effectively read

the ’status’ requirement out of the Act." Id. (citing for

comparison i , 834 F.2d 372,

375 (4th Cir. 1987) ("Were we to read the... require-

ments so broadly as to embrace this claim, . . . we would

come perilously close to eliminating it entirely."), cert.

denied, 485 U.S. 1028 (1988)). Thus, the court of appeals

properly applied the test set forth in Schwalb to the facts of

this case and was correct in holding that Prevetire was not

“"engaged in maritime employment’ within the meaning of

the Act, 33 U.S.C. § 902(3)." App. A, p. lla.

Il. The decision of the court of appeals does

not create a conflict between the Fourth

Circuit and decisions of other circuits,

namely, the decisions in Graziano and

Hullinghorst.

Prevetire asserts in his Petition for a Writ of

Certiorari that the decision below creates a conflict between

the Fourth Circuit and other circuits. In Support of his

assertion and in addition to the two cases specifically dis-

cussed, Prevetire notes a line of cases which have held that

employees involved in the maintenance or repair of machi-

nery utilized in the shipbuilding, ship repair, or ship unload-

ing process, are covered under the Longshore Act.‘ The

“Warren Bros. v. Nelson, 635 F.2d 552, 556 (6th Cir. 1980);

Boudloche v. How: , 632 F.2d 1346, 1347 (Sth Cir.

1980), cert. denied, 452 U.S. 915 (1981); v.

Crawford,, 631 F.2d 1214, 1220-21, n.5 (Sth Cir. 1980); Price v.

Norfolk & Western Ry. Co., 618 F.2d 1059, 1061 (4th Cir. 1980):

8

Employer and Carrier do not dispute the holdings in the

noted cases. However, since the 1972 amendments, the

courts have struggled to draw meaningful lines defining the

scope of coverage under the LHWCA. Each case turns

primarily its facts as they are applied to the law.

Therefore, the Employer and Carrier maintain that the court

of appeals’ decision below is not in conflict with prior

decisions of other circuits, and is specifically not in conflict

with Graziano v. General Dynamics Corp., 663 F.2d 340

(ist Cir. 1981), or ‘

ae 750 (Sth Cir. 1981), cert. denied, 454 U.S. 1163

(1982).

Both of the cases relied upon by Prevetire as being

in conflict with the Fourth Circuit’s decision below, were

decided prior to this Court’s decisions in Herb’s Welding

and Schwalb. Accordingly, they should not be considered

controlling precedent for purposes of determining whether a

legitimate conflict exists between the circuits such as to

warrant granting Prevetire’s Petition for a Writ of

Certiorari. The case at bar is factually distinguishable from

both Graziano and Hullinghorst, and was decided correctly

based on the controlling precedent of this Court.

In Graziano, the claimant was injured and subse-

quently died as a result of a lung disease contracted over

years of employment with General Dynamics. The claimant

was a maintenance-mason, whose duties "primarily involved

the repair of masonry and shipyard buildings, but also

included digging ditches, breaking up concrete with a

jackhammer, laying cement, grouting, removing asbestos

from pipes, repairing boilers and manholes, and cleaning

acid tanks." 663 F.2d at 341. The court therein reversed

the decision of the Benefits Review Board, denying coverage

N ipbuildi LY. , 573 F.2d 167

(4th Cir.), cert. denied, 439 U.S. 979 (1978); Alabama Dry Dock &

Shipbuildi v. Kininess, 554 F.2d 176, 178 (Sth Cir.), cert. denied,

434 U.S. 903 (1977); v , 3 BRBS 195 (1976),

titi ied, 547 F.2d 1161 (3d Cir. 1977).

9

to Graziano, stating that the language of the 1972

amendments is broad and suggests an expansive view of

coverage. See Id. at 342. In finding Graziano covered by

the Act, the First Circuit stated:

[t]he maintenance of the structures housing shipyard

machinery and in which shipbuilding operations are

carried on is no less essential to shipbuilding than is

the repair of the a itself . . . Graziano’s

maintenance and repair of shipyard facilities was

essential to the building and gm of ships...

[T]he shipbuilding process of General Dynamics

would not have come to an immediate halt if

Graziano’s duties were not successfully discharged,

but the failure to perform routine maintenance would

have led eventually to a stoppage or curtailment of

shipbuilding and repairs.

663 F.2d at 342-43.

Based on the above language, Graziano is distin-

guishable from this case. Graziano performed work upon

traditional maritime facilities and the court found his work

essential to the processes of building and repairing ships.

The First Circuit stated that "Graziano’s work was a neces-

sary link in the chain of work that resulted in ships being

built and repaired." Id. at 343. Prevetire’s work, on the

other hand, was not such a neces link. The shipyard

functioned prior to the construction of the power plant upon

which Prevetire was working, and continued to function

during the course of construction and Prevetire’s work.

Prevetire was not involved in the construction, maintenance

or repair of any structures housing shipyard machinery or in

which shipbuilding operations were carried on. His work

was not essential to the traditional maritime activities of

shipbuilding, ship repair, or the loading and unloading of

ships. The failure of Prevetire to perform the work in

question would not have led to either a stoppage or a

curtailment of the shipyard’s operations.

10

Likewise, Hullinghorst is also distinguishable. In

that case, the claimant suffered a back injury while erecting

a scaffold beneath a pier extending out over the Mississippi

River. The sole p of the scaffold was to provide a

place for other employees to stand in order to repair a

turntable used in the loading and unloading of vessels.

Although the claimant had no direct role in the actual repair

work on the turntable, the Fifth Circuit found that "[t]he

scaffolding work at issue in the present case was part of an

fr age Fs repair project involving the repair of a turn-

table (affixed to the pier) used by longshoremen in the

loading and unloading of ships." 650 F.2d at 756. The

court found that the claimant’s work in erecting the scaffold-

ing was "an essential and indispensable step in the repairs to

be effected." Id. Quoting an earlier decision of the Fifth

Circuit, the court further found that the claimant’s activities

bore a “realistically significant relationship to ’traditional

maritime activity involving navigation and commerce on

navigable waters’... ." 650 F.2d at 756 (quoting Odom

’ I,

22 F.2d 110,

113 (Sth Cir. 1980)).

In Hullinghorst, the claimant was directly involved in

the repair of a piece of machinery, affixed to a pier, and

used by longshoremen in the loading and unloading of ships.

Prevetire’s work, however, was not such an integral part of

either the loading and unloading operations at the shipyard

or the shipbuilding and repair operations. The Employer

and Carrier continue to maintain that the Fourth Circuit

correctly determined that Prevetire’s work was not essential

to the shipyard’s operations and traditional maritime

activities. Contrary to the position argued by Prevetire, the

Employer and Carrier assert that both the First Circuit and

the Fifth Circuit would have found that Prevetire did not

meet the status requirement of the Longshore Act.

11

Il. The decision of the Fourth Circuit is not

in conflict with its decisions in Joyner,

Price, and Pittman.

Prevetire argues in his Petition for a Writ of

Certiorari that the decision below is in conflict with other

decisions decided by the Fourth Circuit, primarily Brown

‘at aoa 1087 (4th Cir. 1979),

cert, denied, 446 U.S. 981 (1980); Price v, Norfolk &

Westem Ry, Co,, 618 F.2d 1059 (4th Cir. 1980); and

35 F.3d 122 (1994). Both Joyner and Price were decided

prior to this Court’s decision in Schwalb, but all three are

distinguishable from the facts of this case.

In Joyner, the employer was engaged as an indepen-

dent contractor to construct an additional shipyard for

building and servicing liquified natural gas vessels. The

construction included the building of a permanent dry dock

for building and repair of ships and related structures such

as Craneways and assembly areas. The new yard was built

on filled land in an area that was formerly a shallow,

navigable part of the James River. Joyner, a general

excavation foreman, was killed by a tractor while supervis-

ing the loading of sand being used to grade the yard and

backfill the concrete walls of the dry dock. Stewart, a

painter/sandblaster, worked all over the project, and was

injured while loading a generator and bags of sand onto a

truck for transport to the dry dock. See F.2d at 1089.

The Fourth Circuit found that Stewart and Joyner were both

engaged in building a dry dock and thus, were engaged in

maritime employment. “We have held, under the earlier

version of the Act, that employees building and repairing

dry docks are engaged in maritime employment." Id.

Interestingly, dry docks are a covered situs both prior to and

subsequent to the 1972 amendments. As emphasized by the

court of appeals, a dry dock is peculiarly a maritime

facility. See Id. The claimants therein were not found to

be engaged in maritime employment simply because they

were engaged in the construction of shipyard facilities

12

critical to the entire ship operation, as suggested by

Prevetire. Rather, both claimants therein were working to

construct a traditionally maritime facility. Such facts are

clearly distinguishable from the present case wherein the

claimant was engaged in the construction of a power plant,

which is not a traditionally maritime facility.

Prevetire suggests that it is noteworthy that the court

of appeals did not even address its prior decision in Joyner

in the decision below. It is not necessary that the court of

appeals discuss and distinguish every one of its prior

decisions which may be applicable in some fashion. As set

forth above, Joyner is distinguishable on its facts from the

case at bar. Therefore, the court of appeals did not need to

consider or discuss Joyner. There is no irreconcilable

conflict, as Prevetire asks this Court to find, because the

court of appeals found a distinction between the construction

of a dry dock, a traditional maritime facility, and the con-

struction of a power plant, which is not a traditional

maritime facility, and which has no maritime nexus except

for its location.

Prevetire also argues that the Fourth Circuit’s

decision in Price v, Norfolk & Western Ry, Co., 618 F.2d

1059 (1980), conflicts with the decision below. Price was

injured while painting support towers for equipment used in

the loading and unloading of vessels at the Sewells Point

*The Employer specialized in the construction of small power plants

located in many parts of the country. During this same time period, the

employer had four other power plants under construction. These

included a hydroelectric facility in Idaho; a co-generation plant at the

Red River Army Depot in Texarkana, Texas; a combined fuel, co-

generation plant for Stone Container Corp. in Florence, South Carolina;

and a garbage burning facility for Regional Waste Systems in Portland,

Maine. The plant being constructed at Norfolk Naval Shipyard was not

unique in any way as compared to the other power plants that had been

constructed, or were being constructed, by the Employer. Furthermore,

construction of the plant, nor Prevetire’s own work, were affected in any

way by the fact that the plant was near navigable water or was intended

to provide power to a shipyard.

13

BR = Om, eae + Soe

port facility. Relying on Newport News Shipbuilding &

, 573 F.2d 167 (4th Cir.), cert,

denied, 439 U.S. 979 (1978), the court found that Price was

engaged in "maritime employment,” since he was painting

a structure essential to the loading and unloading process.

The court, therefore, held that a person who maintains

longshoring machinery is covered under the Act. See Id. at

1061.

Price, although decided prior to this Court’s decision

in Schwalb, is consistent therewith, and does not affect the

outcome of the present case. Prevetire was not engaged in

work that is an essential part of loading and unloading ships

or other longshoring activities. The court of appeals did not

draw a distinction, as suggested, between ship ir/con-

struction and ship loading/unloading. Rather, it found the

work performed by Prevetire not essential to any of the

shipyard’s longshoring operations. The mere fact that

power from the power plant being constructed by Prevetire

would ultimately be used to support those Operations is too

tenuous a connection to establish coverage under the

Longshore Act.

Finally, Prevetire argues that the Fourth Circuit’s

recent decision in Pittman is also at odds with the decision

below. In that case, the claimant alleged that he sustained

a back injury while working as a pipe welder for Pittman.

At the time of his injury, he was assigned to a project on

Pier 12 at the Norfolk, Virginia Naval Operations Base.

Pittman had contracted to construct pipelines for the pier,

which involved removing the old pipelines and replacing

them with new pipelines. The pipelines were used to load

fuel, steam and water onto the vessels when they were

docked at the pier.

As in the present case, the court was called upon to

determine whether the claimant met the "status" requirement

of the Longshore Act. In anal zing the facts of the case,

the court of appeals followed this Court’s decision in

Schwalb, which requires that for land-based activity to be

14

considered maritime employment, it must be an "integral or

essential part of loading or unloading a vessel." 35 F.3d at

125 (quoting 493 U.S. at 45). As stated by this Court in

Schwalb, “employees who are injured while maintaining or

repairing equipment essential to the loading or unloading

process are covered by the Act." 493 U.S. at 47. The

court of appeals found that the pipelines being installed and

repaired by the claimant were the only available means of

transport to load the supplies essential to the ships’

operation. See 35 F.3d at 126. "The necessity of these

items is demonstrated by the fact that Pier 12 could not be

used for docking purposes while the pipelines were out of

commission.” Id. Therefore, as discussed by the court of

appeals, Pittman is distinguishable on its facts from the

present case. The longshoring operations in the shipyard

were not out of commission while Prevetire performed his

work in connection with construction of the power plant,

and his work was not essential to those operations. Even

though the LHWCA is to be liberally construed, Congress

did not intend that every one who sets foot upon a covered

situs be considered a maritime employee. Accordingly, the

Fourth Circuit properly found that Prevetire was not

engaged in maritime employment at the time of his injury

and is therefore not covered under the Longshore Act.

For the foregoing reasons, the Employer and Carrier

respectfully pray that Prevetire’s Petition for a Writ of

Certiorari be denied.

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Respectfully submitted,

WEYHER-LIVSEY CONSTRUCTORS,

INCORPORATED and

EMPLOYERS INSURANCE OF

WAUSAU, A MUTUAL COMPANY

Robert A. Rapaport, Esq.

Counsel of Record

Jimese L. Pendergraft, Esq.

KNIGHT, DUDLEY, DEZERN &

CLARKE, P.L.L.C.

6160 Kempsville Circle, Suite 101A

Norfolk, Virginia 23502

(804) 466-0464

Counsel for Respondents

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