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Securing LHWCA Insurance Coverage – A Prudent Decision

Louisiana state courts have allowed a longshoreman to bring a tort action against an oil company, as an employer, pursuant to the Longshore and Harbor Workers Compensation Act ("LHWCA") where the oil company failed to secure LHWCA insurance coverage. Although the case Love v. AAA Temporaries, Inc. was decided almost a decade ago it serves as a great illustration of what can happen when an employer fails to secure LHWCA insurance coverage.

A. Background

Plaintiff, a deckhand, slipped in oil, fell, and was injured while working on a barge at an Apex Oil Company, Inc.'s ("Apex") facility in Port Allen, Louisiana. AAA Temporaries, Inc. ("AAA") had assigned plaintiff to work at the facility and he was performing longshoring duties at the time of the injury.

Plaintiff sued Apex since it failed to secure Longshore and Harbor Workers insurance coverage. Plaintiff filed a motion for partial summary judgment on the issue of lack of Longshore and Harbor Workers insurance coverage on the date of the accident. The court granted plaintiff's motion because Apex did not have LHWCA coverage. Plaintiff then filed motions for summary judgment on the issues of employment status and liability for the accident. The trial court granted both motions. Apex appealed.

B. Appeal

The primary issue on appeal was: The trial court erred in granting summary judgment on the issue of liability since there was conflicting eye witness testimony.

C. Discussion

The Court of Appeals started its analysis with the LHWCA and determined that the substantive law applicable to the dispute is 33 U.S.C. § 905(a), which provides, in part:

Employer liability; failure of employer to secure payment of compensation

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, . . ., except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee . . . may elect to claim compensation under the chapter, or to maintain an action at 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. (Emphasis added).
 
The Court of Appeals affirmed, holding that in suits of this nature defenses to liability do not apply. The Court concluded that despite conflicting eye witness testimony Apex’s liability was without question since the witnesses confirmed that: 1) an accident occurred; 2) the accident occurred while plaintiff was performing job duties at Apex; and 3) leaking oil contributed to the accident. 

D. Why is this important?
  1. Security for payment of LHWCA compensation is required by 33 U.S.C. §932;
  2. Uninsured exposure to uncapped tort liability can have devastating consequences;
  3. Tort suits of this nature are difficult to defend without liability defenses;
  4. 33 U.S.C. §938 outlines criminal penalties (fines and/or imprisonment) for failure to secure payment of compensation; and
  5. There is personal liability for the president, secretary, and treasurer of a corporation that fails to secure payment of compensation under the LHWCA.
If you have questions about whether your employees are covered by the LHWCA you should consult with your insurance broker and/or attorney.

Article written by W. Brett Mason and Saul R. Newsome.

Securing LHWCA Insurance Coverage – A Prudent Decision

Louisiana state courts have allowed a longshoreman to bring a tort action against an oil company, as an employer, pursuant to the Longshore and Harbor Workers Compensation Act ("LHWCA") where the oil company failed to secure LHWCA insurance coverage. Although the case Love v. AAA Temporaries, Inc. was decided almost a decade ago it serves as a great illustration of what can happen when an employer fails to secure LHWCA insurance coverage.

A. Background

Plaintiff, a deckhand, slipped in oil, fell, and was injured while working on a barge at an Apex Oil Company, Inc.'s ("Apex") facility in Port Allen, Louisiana. AAA Temporaries, Inc. ("AAA") had assigned plaintiff to work at the facility and he was performing longshoring duties at the time of the injury.

Plaintiff sued Apex since it failed to secure Longshore and Harbor Workers insurance coverage. Plaintiff filed a motion for partial summary judgment on the issue of lack of Longshore and Harbor Workers insurance coverage on the date of the accident. The court granted plaintiff's motion because Apex did not have LHWCA coverage. Plaintiff then filed motions for summary judgment on the issues of employment status and liability for the accident. The trial court granted both motions. Apex appealed.

B. Appeal

The primary issue on appeal was: The trial court erred in granting summary judgment on the issue of liability since there was conflicting eye witness testimony.

C. Discussion

The Court of Appeals started its analysis with the LHWCA and determined that the substantive law applicable to the dispute is 33 U.S.C. § 905(a), which provides, in part:

Employer liability; failure of employer to secure payment of compensation

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, . . ., except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee . . . may elect to claim compensation under the chapter, or to maintain an action at 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. (Emphasis added).
 
The Court of Appeals affirmed, holding that in suits of this nature defenses to liability do not apply. The Court concluded that despite conflicting eye witness testimony Apex’s liability was without question since the witnesses confirmed that: 1) an accident occurred; 2) the accident occurred while plaintiff was performing job duties at Apex; and 3) leaking oil contributed to the accident. 

D. Why is this important?
  1. Security for payment of LHWCA compensation is required by 33 U.S.C. §932;
  2. Uninsured exposure to uncapped tort liability can have devastating consequences;
  3. Tort suits of this nature are difficult to defend without liability defenses;
  4. 33 U.S.C. §938 outlines criminal penalties (fines and/or imprisonment) for failure to secure payment of compensation; and
  5. There is personal liability for the president, secretary, and treasurer of a corporation that fails to secure payment of compensation under the LHWCA.
If you have questions about whether your employees are covered by the LHWCA you should consult with your insurance broker and/or attorney.

Article written by W. Brett Mason and Saul R. Newsome.

Securing LHWCA Insurance Coverage – A Prudent Decision

Louisiana state courts have allowed a longshoreman to bring a tort action against an oil company, as an employer, pursuant to the Longshore and Harbor Workers Compensation Act ("LHWCA") where the oil company failed to secure LHWCA insurance coverage. Although the case Love v. AAA Temporaries, Inc. was decided almost a decade ago it serves as a great illustration of what can happen when an employer fails to secure LHWCA insurance coverage.

A. Background

Plaintiff, a deckhand, slipped in oil, fell, and was injured while working on a barge at an Apex Oil Company, Inc.'s ("Apex") facility in Port Allen, Louisiana. AAA Temporaries, Inc. ("AAA") had assigned plaintiff to work at the facility and he was performing longshoring duties at the time of the injury.

Plaintiff sued Apex since it failed to secure Longshore and Harbor Workers insurance coverage. Plaintiff filed a motion for partial summary judgment on the issue of lack of Longshore and Harbor Workers insurance coverage on the date of the accident. The court granted plaintiff's motion because Apex did not have LHWCA coverage. Plaintiff then filed motions for summary judgment on the issues of employment status and liability for the accident. The trial court granted both motions. Apex appealed.

B. Appeal

The primary issue on appeal was: The trial court erred in granting summary judgment on the issue of liability since there was conflicting eye witness testimony.

C. Discussion

The Court of Appeals started its analysis with the LHWCA and determined that the substantive law applicable to the dispute is 33 U.S.C. § 905(a), which provides, in part:

Employer liability; failure of employer to secure payment of compensation

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, . . ., except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee . . . may elect to claim compensation under the chapter, or to maintain an action at 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. (Emphasis added).
 
The Court of Appeals affirmed, holding that in suits of this nature defenses to liability do not apply. The Court concluded that despite conflicting eye witness testimony Apex’s liability was without question since the witnesses confirmed that: 1) an accident occurred; 2) the accident occurred while plaintiff was performing job duties at Apex; and 3) leaking oil contributed to the accident. 

D. Why is this important?
  1. Security for payment of LHWCA compensation is required by 33 U.S.C. §932;
  2. Uninsured exposure to uncapped tort liability can have devastating consequences;
  3. Tort suits of this nature are difficult to defend without liability defenses;
  4. 33 U.S.C. §938 outlines criminal penalties (fines and/or imprisonment) for failure to secure payment of compensation; and
  5. There is personal liability for the president, secretary, and treasurer of a corporation that fails to secure payment of compensation under the LHWCA.
If you have questions about whether your employees are covered by the LHWCA you should consult with your insurance broker and/or attorney.

Article written by W. Brett Mason and Saul R. Newsome.

Securing LHWCA Insurance Coverage – A Prudent Decision

Louisiana state courts have allowed a longshoreman to bring a tort action against an oil company, as an employer, pursuant to the Longshore and Harbor Workers Compensation Act ("LHWCA") where the oil company failed to secure LHWCA insurance coverage. Although the case Love v. AAA Temporaries, Inc. was decided almost a decade ago it serves as a great illustration of what can happen when an employer fails to secure LHWCA insurance coverage.

A. Background

Plaintiff, a deckhand, slipped in oil, fell, and was injured while working on a barge at an Apex Oil Company, Inc.'s ("Apex") facility in Port Allen, Louisiana. AAA Temporaries, Inc. ("AAA") had assigned plaintiff to work at the facility and he was performing longshoring duties at the time of the injury.

Plaintiff sued Apex since it failed to secure Longshore and Harbor Workers insurance coverage. Plaintiff filed a motion for partial summary judgment on the issue of lack of Longshore and Harbor Workers insurance coverage on the date of the accident. The court granted plaintiff's motion because Apex did not have LHWCA coverage. Plaintiff then filed motions for summary judgment on the issues of employment status and liability for the accident. The trial court granted both motions. Apex appealed.

B. Appeal

The primary issue on appeal was: The trial court erred in granting summary judgment on the issue of liability since there was conflicting eye witness testimony.

C. Discussion

The Court of Appeals started its analysis with the LHWCA and determined that the substantive law applicable to the dispute is 33 U.S.C. § 905(a), which provides, in part:

Employer liability; failure of employer to secure payment of compensation

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, . . ., except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee . . . may elect to claim compensation under the chapter, or to maintain an action at 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. (Emphasis added).
 
The Court of Appeals affirmed, holding that in suits of this nature defenses to liability do not apply. The Court concluded that despite conflicting eye witness testimony Apex’s liability was without question since the witnesses confirmed that: 1) an accident occurred; 2) the accident occurred while plaintiff was performing job duties at Apex; and 3) leaking oil contributed to the accident. 

D. Why is this important?
  1. Security for payment of LHWCA compensation is required by 33 U.S.C. §932;
  2. Uninsured exposure to uncapped tort liability can have devastating consequences;
  3. Tort suits of this nature are difficult to defend without liability defenses;
  4. 33 U.S.C. §938 outlines criminal penalties (fines and/or imprisonment) for failure to secure payment of compensation; and
  5. There is personal liability for the president, secretary, and treasurer of a corporation that fails to secure payment of compensation under the LHWCA.
If you have questions about whether your employees are covered by the LHWCA you should consult with your insurance broker and/or attorney.

Article written by W. Brett Mason and Saul R. Newsome.

Securing LHWCA Insurance Coverage – A Prudent Decision

Louisiana state courts have allowed a longshoreman to bring a tort action against an oil company, as an employer, pursuant to the Longshore and Harbor Workers Compensation Act ("LHWCA") where the oil company failed to secure LHWCA insurance coverage. Although the case Love v. AAA Temporaries, Inc. was decided almost a decade ago it serves as a great illustration of what can happen when an employer fails to secure LHWCA insurance coverage.

A. Background

Plaintiff, a deckhand, slipped in oil, fell, and was injured while working on a barge at an Apex Oil Company, Inc.'s ("Apex") facility in Port Allen, Louisiana. AAA Temporaries, Inc. ("AAA") had assigned plaintiff to work at the facility and he was performing longshoring duties at the time of the injury.

Plaintiff sued Apex since it failed to secure Longshore and Harbor Workers insurance coverage. Plaintiff filed a motion for partial summary judgment on the issue of lack of Longshore and Harbor Workers insurance coverage on the date of the accident. The court granted plaintiff's motion because Apex did not have LHWCA coverage. Plaintiff then filed motions for summary judgment on the issues of employment status and liability for the accident. The trial court granted both motions. Apex appealed.

B. Appeal

The primary issue on appeal was: The trial court erred in granting summary judgment on the issue of liability since there was conflicting eye witness testimony.

C. Discussion

The Court of Appeals started its analysis with the LHWCA and determined that the substantive law applicable to the dispute is 33 U.S.C. § 905(a), which provides, in part:

Employer liability; failure of employer to secure payment of compensation

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, . . ., except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee . . . may elect to claim compensation under the chapter, or to maintain an action at 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. (Emphasis added).
 
The Court of Appeals affirmed, holding that in suits of this nature defenses to liability do not apply. The Court concluded that despite conflicting eye witness testimony Apex’s liability was without question since the witnesses confirmed that: 1) an accident occurred; 2) the accident occurred while plaintiff was performing job duties at Apex; and 3) leaking oil contributed to the accident. 

D. Why is this important?
  1. Security for payment of LHWCA compensation is required by 33 U.S.C. §932;
  2. Uninsured exposure to uncapped tort liability can have devastating consequences;
  3. Tort suits of this nature are difficult to defend without liability defenses;
  4. 33 U.S.C. §938 outlines criminal penalties (fines and/or imprisonment) for failure to secure payment of compensation; and
  5. There is personal liability for the president, secretary, and treasurer of a corporation that fails to secure payment of compensation under the LHWCA.
If you have questions about whether your employees are covered by the LHWCA you should consult with your insurance broker and/or attorney.

Article written by W. Brett Mason and Saul R. Newsome.

Securing LHWCA Insurance Coverage – A Prudent Decision

Louisiana state courts have allowed a longshoreman to bring a tort action against an oil company, as an employer, pursuant to the Longshore and Harbor Workers Compensation Act ("LHWCA") where the oil company failed to secure LHWCA insurance coverage. Although the case Love v. AAA Temporaries, Inc. was decided almost a decade ago it serves as a great illustration of what can happen when an employer fails to secure LHWCA insurance coverage.

A. Background

Plaintiff, a deckhand, slipped in oil, fell, and was injured while working on a barge at an Apex Oil Company, Inc.'s ("Apex") facility in Port Allen, Louisiana. AAA Temporaries, Inc. ("AAA") had assigned plaintiff to work at the facility and he was performing longshoring duties at the time of the injury.

Plaintiff sued Apex since it failed to secure Longshore and Harbor Workers insurance coverage. Plaintiff filed a motion for partial summary judgment on the issue of lack of Longshore and Harbor Workers insurance coverage on the date of the accident. The court granted plaintiff's motion because Apex did not have LHWCA coverage. Plaintiff then filed motions for summary judgment on the issues of employment status and liability for the accident. The trial court granted both motions. Apex appealed.

B. Appeal

The primary issue on appeal was: The trial court erred in granting summary judgment on the issue of liability since there was conflicting eye witness testimony.

C. Discussion

The Court of Appeals started its analysis with the LHWCA and determined that the substantive law applicable to the dispute is 33 U.S.C. § 905(a), which provides, in part:

Employer liability; failure of employer to secure payment of compensation

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, . . ., except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee . . . may elect to claim compensation under the chapter, or to maintain an action at 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. (Emphasis added).
 
The Court of Appeals affirmed, holding that in suits of this nature defenses to liability do not apply. The Court concluded that despite conflicting eye witness testimony Apex’s liability was without question since the witnesses confirmed that: 1) an accident occurred; 2) the accident occurred while plaintiff was performing job duties at Apex; and 3) leaking oil contributed to the accident. 

D. Why is this important?
  1. Security for payment of LHWCA compensation is required by 33 U.S.C. §932;
  2. Uninsured exposure to uncapped tort liability can have devastating consequences;
  3. Tort suits of this nature are difficult to defend without liability defenses;
  4. 33 U.S.C. §938 outlines criminal penalties (fines and/or imprisonment) for failure to secure payment of compensation; and
  5. There is personal liability for the president, secretary, and treasurer of a corporation that fails to secure payment of compensation under the LHWCA.
If you have questions about whether your employees are covered by the LHWCA you should consult with your insurance broker and/or attorney.

Article written by W. Brett Mason and Saul R. Newsome.