BRB Nos. 95-127 - 95-369


HARRIS F. AGENT, et al.   )
                                        )
          Claimants-Petitioners         )
                                        )
       v.                               )
                                        )
INGALLS SHIPBUILDING,                   )
INCORPORATED                            )
                                        )
          Self-Insured                  )    DATE ISSUED:   02/29/1996
          Employer-Respondent           )
                                        )
DIRECTOR, OFFICE OF WORKERS'            )
COMPENSATION PROGRAMS,                  )
UNITED STATES DEPARTMENT                )
OF LABOR                                )
                                        )
          Respondent                    )    DECISION and ORDER

     Appeals of the Decision and Order Granting Employer's Motion for Summary
     Decision and the Decision and Order Denying Claimant's Motion for
     Reconsideration of A. A. Simpson, Jr., Administrative Law Judge, United
     States Department of Labor.

     Ransom P. Jones, III, Pascagoula, Mississippi, for claimants.[1]

     Paul M. Franke, Jr. (Franke, Rainey & Salloum), Gulfport, Mississippi,
     for self-insured employer.

     Mark A. Reinhalter (J. Davitt McAteer, Acting Solicitor of Labor; Carol
     A. DeDeo, Associate Solicitor; Samuel J. Oshinsky, Counsel for
     Longshore), Washington, D.C., for the Director, Office of Workers'
     Compensation Programs, United States Department of Labor.

     Before:  SMITH, DOLDER, and McGRANERY, Administrative Appeals Judges.

     PER CURIAM:

     Claimants appeal the Decision and Order Granting Employer's Motion for Summary
Decision and the Decision and Order Denying Claimant's Motion for Reconsideration
(93    C    8421, et al.) of Administrative Law Judge A. A. Simpson,
Jr., granting summary judgment on 243 claims filed pursuant to the provisions of
the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901
et seq. (the Act). [2]
   We must affirm the administrative law judge's findings of fact and
conclusions of law if they are supported by substantial evidence, are rational, and
are in accordance with law.  33 U.S.C. §921(b)(3); O'Keeffe v. Smith,
Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

     This case represents a consolidation of 243 cases filed by claimants who were
allegedly exposed to asbestos during the course of their employment with employer. 
After the cases were transferred to the Office of Administrative Law Judges (OALJ),
employer filed a motion for summary judgment for the consolidated cases, and
claimants were ordered to show cause why the motion should not be granted. 
Employer contended that claimants entered into third-party settlements without its
prior approval and that, therefore, all are barred from seeking compensation under
the Act pursuant to Section 33(g), 33 U.S.C. §933(g).  Claimants and the
Director, Office of Workers' Compensation Programs (the Director), responded to the
motion, arguing that there are issues of fact which must be resolved before it can
be determined whether Section 33(g) can be invoked to bar claimants from seeking
benefits under the Act.  Specifically, although conceding that they did not obtain
prior approval of the settlements from employer, they asserted that the
administrative law judge must determine whether each claimant is a "person entitled
to compensation" under Section 33(g) and whether each claimant received third-party
settlement proceeds in amounts more or less than the amount to which each is
entitled under the Act.  

     The administrative law judge disagreed with claimants and the Director and
rendered his summary judgment based on a purported application of the law as set
forth in Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 112
S.Ct. 2589, 26 BRBS 49 (CRT) (1992), Cretan v. Bethlehem Steel Corp.,
1 F.3d 843, 27 BRBS 93 (CRT) (9th Cir. 1993), cert. denied, ___ U.S.
___, 114 S.Ct. 2705 (1994), and Villanueva v. CNA Ins. Companies, 868
F.2d 684 (5th Cir. 1989), and determined that each claimant forfeited his right to
compensation and medical benefits under the Act by virtue of the failure to comply
with the requirements of Section 33(g)(1).  Decision and Order at 2-3. 
Additionally, the administrative law judge found that employer is entitled to
summary judgment based on an affidavit which was submitted by employer and averred
that, without prior approval, each claimant entered into third-party settlements
for less than the amount of compensation to which he would be entitled under the
Act.[3]   Although claimants and the Director
responded to employer's motion, they filed no rebuttal affidavits, and the
administrative law judge concluded that the facts of each case were as employer
averred. Decision and Order at 4.  Consequently, the administrative law judge
granted employer's motion for summary judgment. Id. at 4-5.

     Claimants filed a Motion for Reconsideration, arguing that the administrative
law judge improperly relied on the affidavit filed by employer and maintaining that
there are unresolved issues of fact affecting the applicability of Section 33(g)
to each claimant.  The administrative law judge denied the motion.  Claimants
appeal the administrative law judge's decisions.  The Director responds, urging the
Board to vacate the decisions and remand the cases to the administrative law judge. 
Employer responds, urging affirmance.

     On appeal, claimants contend the administrative law judge erred in granting
summary judgment in this consolidation of cases because questions of material fact
remain unresolved.  They argue that the administrative law judge should have
determined whether each claimant is a "person entitled to compensation" and whether
each entered into third-party settlements for amounts less than the amount of
compensation to which he is entitled under the Act before it can be determined
whether Section 33(f) and/or (g), 33 U.S.C. §933(f), (g), applies to
extinguish employer's liability for benefits under the Act.  The Director agrees
and contends that the Board's decision in Harris v. Todd Pacific Shipyards
Corp., 28 BRBS 254 (1994), aff'd and modified on recon. en
banc, ___ BRBS ___, BRB No. 93-2227 (January 25, 1996) (Brown and
McGranery, JJ., concurring and dissenting), mandates that these cases be remanded
for further fact-finding.  

     We agree with claimants and the Director that there are unresolved issues of
material fact in the cases presently before the Board; therefore, we hold that it
was improper for the administrative law judge to grant employer's motion for
summary judgment.  The Board recently addressed issues identical to the ones raised
in these cases in Harris and Gladney v. Ingalls Shipbuilding,
Inc., ___ BRBS ___, BRB No. 94-1427 (January 31, 1996) (McGranery, J.,
concurring).  Specifically, the Board held that the determination of whether each
claimant is a "person entitled to compensation" requires findings of fact, and,
before it is determined that a claim is barred by Section 33(g)(1), a comparison
must be made between the gross amount of a claimant's aggregate third-party
settlement recoveries and the amount of compensation, exclusive of medical
benefits, to which he would be entitled under the Act. Gladney, slip
op. at 4; Harris, slip op. at 16, 18; see also Cowart,
112 S.Ct. at 2597, 26 BRBS at 53 (CRT) (Section 33(g)(1) is inapplicable if a
claimant's third-party settlement is for an amount greater than the amount to which
he is entitled under the Act).  Thus, an administrative law judge's failure to
ascertain these facts and instead grant an employer's motion for summary judgment
is erroneous.  Gladney, slip op. at 4; Harris, 28 BRBS
at 262-263.  The Board also determined that Section 33(f) does not necessarily
extinguish an employer's total liability for benefits in every case, but rather
provides the employer with a credit in the amount of the claimant's net third-party
recovery against its liability for compensation and medical benefits.
Harris, 28 BRBS at 269; see also Bundens v. J.E. Brenneman
Co., 46 F.3d 292, 29 BRBS 52 (CRT) (3d Cir. 1995).

     As the Board previously has addressed the Section 33(g) issues presented in
this consolidation of cases, we decline to revisit them.  For the reasons set forth
in Gladney and Harris, we hold that the administrative
law judge erred in granting employer's motion for summary judgment in these cases
because there are unresolved questions of material fact.  Therefore, we vacate the
administrative law judge's decisions herein, and we remand these cases for further
action consistent with law.  Gladney, slip op. at 4-5;
Harris, slip op. at 21. 

     Accordingly, the administrative law judge's decision granting employer's
motion for summary judgment is vacated, and the cases are remanded for
consideration consistent with this opinion.

     SO ORDERED.


                         _______________________________
                                        ROY P. SMITH
                                        Administrative Appeals Judge




                         _______________________________
                                        NANCY S. DOLDER
                                        Administrative Appeals Judge




                         _______________________________
                                        REGINA C. McGRANERY
                                        Administrative Appeals Judge
[1] 



Footnotes.

 1)In a letter dated June 7, 1995, counsel informed the Board he no longer represents eight of the
243 claimants herein, including the named claimant.  Those eight claimants are now considered pro se
petitioners, but that does not affect our analysis or decision in this case.
 Back to Text

 2)By Order dated December 2, 1994, the Board consolidated these 243 appeals and designated the
Agent case, BRB No. 95-127, as the lead case for purposes of briefing and decision.  A list of all claimants
and BRB Numbers is attached to this decision.
 Back to Text

 3)The administrative law judge's decision refers to an affidavit of William Jordan; however, the
affidavit attached to employer's Motion for Summary Decision reveals that George M. Simmerman, Jr., was the affiant in this
case. See also Emp. Reply to Dir. Brief at 2.  Mr. Simmerman testified that he is a Staff Attorney for Ingalls
Shipbuilding, Inc., with legal responsibility for claims filed under the Act, and that he observed the reviewing process for
each of the claims herein.
 Back to Text


 


To Top of Document

Footnotes.
 1)
 1)In a letter dated June 7, 1995, counsel informed the Board he
no longer represents eight of the 243 claimants herein, including the named claimant.  Those eight claimants are now
considered pro se petitioners, but that does not affect our analysis or decision in this case.
 Back to Text

 2)By Order dated December 2, 1994, the Board consolidated these 243 appeals and designated the
Agent case, BRB No. 95-127, as the lead case for purposes of briefing and decision.  A list of all claimants
and BRB Numbers is attached to this decision.
 Back to Text

 3)The administrative law judge's decision refers to an affidavit of William Jordan; however, the
affidavit attached to employer's Motion for Summary Decision reveals that George M. Simmerman, Jr., was the affiant in this
case. See also Emp. Reply to Dir. Brief at 2.  Mr. Simmerman testified that he is a Staff Attorney for Ingalls
Shipbuilding, Inc., with legal responsibility for claims filed under the Act, and that he observed the reviewing process for
each of the claims herein.
 Back to Text


 Back to Text

To Top of Document