Background:
Plaintiff, Errol Chouset, alleged that he noticed wet paint on the M/V Hannah B owned by Offshore Marine that had been turned over to Superior for repairs. Chouset, an employee of Superiod,  asked his foreman what to do and was instructed to keep working.

Chouset claimed he fell and injured his back on the wet paint as he returned to work. Chouset filed a claim under LHWCA, Longeshore Harbor Workers' Compensation Act, and against Offshore Marine.

Offshore Marine added Superior as a third party defendant and Chouset moved to add Superior as a direct defendant.

Issue:
Should Superior be brought in as a direct or third party defendant?

Held:
Superior argued that the third party complaint is premature and not ripe for litigation and non-justiciable because this matter is already pending under the LHWCA. Chouset has brought an action under LHWCA to administrative judges to determine the issue of his employer/employee relationship and status. Accordingly, Superior contended that the claim against them as a third party defendant is not ripe.

Superior pointed to §905(a) to stand for the proposition that an employee may elect to claim compensation under the LHWCA and therefore, Superior contended that Chouset's election is binding and prevents Superior's liability in tort.

This Court however, found 905(a) inapplicable to this issue. This Court recognized that under §905(a) an injured employee may proceed under the LHWCA or under tort if any employer fails to secure payment of compensation as required by this chapter.

905(a) deals with an employer who has declined to procure insurance or otherwise failed to compensate an employee entitled to coverage under the LHWCA.

Superior's position, this Court reasoned, would tag Chouset as an independent contractor and remove recovery under LHWCA completely.

Ultimately this Court found that the Jones Act claim, in which Superior is a third party defendant, is not stayed by LHWCA proceedings.  Chouset's status, as a seaman or not, can be resolved by cross motions for summary judgment unless material factual disputes arise.

Accordingly, this Court found Superior's claim is ripe for hearing.

Comment:
This case provided a good illustration of LHWCA procedure for a claim.

The LHWCA is a statutorily-defined scheme to allow agency expertise to adjudicated and review all claims by land-based maritime workers.

First, a claim is brought before an Administrative Law Judge under §919(c), an appeal of the ALJ's finding may be brought pursuant to §921(b) to the Benefits Review Board (BRB). If an employee/employer is not satisfied with the ruling of the BRB, then they may appeal, to a court of appeals under §921(c).

Employer liability is exclusively constrained to this administrative proceeding under the LHWCA. All other liabilities between an employer and land based maritime employee are pre-empted.

Steve Gordon