Background:
This is the third of three appeals decided by this court regarding the action filed by Blaise DiBenedetto.

Blaise was injured while employed with Noble Drilling Company due to alleged negligence. Blaise brought this action against the executive officers of his former employers under state law. The trial court granted summary judgment in favor of the defendants because it found those executives to be immune from tort liability under the LHWCA.

This appeal, involved whether the executive officers of Blaise's former stevedoring employers are entitled to immunity from suit under the Longshore Harbor Wokers' Compensation Act ("LHWCA").

Issue:
Did the trial court err in granting defendants' motion for summary judgment denying Blaise's claim against his former employers' executives because it was barred under the LHWCA?

Held:
The executive officers looked to §933(i) of the LHWCA's exclusivity provision which states that the right to compensation or benefits where an employee is injured or killed by the negligence or wrong of anyone in the same employ. It further states that the provision shall not affect the liability of a person other than an officer or employee of the employer.

This Court found, however, that because his claim was not barred under the LHWCA's exclusivity provision previously, that it also did not bar his action against the executives.

More specifically, the Court found that a substantial exposure to asbestos leading to his mesothelioma occurred before the LHWCA was amended to include the exclusivity provision. As such, the cause of action was not barred because it arose prior to the bar under the LHWCA.

Accordingly, this Court reversed the trial court's granting of defendants' motion for summary judgment.

Comment:
For the same reasons under the 2^nd issue of appeal this Court found that Blaise's cause of action was not barred by the LHWCA.

The exclusivity provision under LHWCA provides the exclusive means of recovery for those who are in the same kind of employment as Blaise. There are exceptions, including one for intentional torts, however, an injury resulting from the negligence of his/her employer limits recovery to only under the LHWCA.

Steve Gordon