Skip to page content
Benefits Review Board
Bookmark and Share




                                         
DOROTHY F. COX                          )    BRB No. 92-2288
(Widow of RAY G. COX)                   )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
INGALLS SHIPBUILDING,                   )
INCORPORATED                            )
                                        )
          Self-Insured                  )
          Employer-Respondent           )
                                        )
                                        )
VIVIAN JONES                            )    BRB No. 92-2289
(Widow of CASSIE R. JONES, SR.)         )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
INGALLS SHIPBUILDING,                   )    DATE ISSUED:   01/20/1995
INCORPORATED                            )
                                        )
     and                                )
                                        )
AMERICAN MUTUAL LIBERTY                 )
INSURANCE COMPANY, BY AND               )
THROUGH THE MISSISSIPPI                 )
INSURANCE GUARANTY                      )
ASSOCIATION                             )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeals of the Decision and Order Granting Employer's Motions for
     Summary Judgment of C. Richard Avery, Administrative Law Judge, United
     States Department of Labor.

     Steven J. Miller (Ransom P. Jones, III, P.A.), Pascagoula, Mississippi,
     for claimants Cox and Jones.

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

     Before:  SMITH and DOLDER, Administrative Appeals Judges, and SHEA,
     Administrative Law Judge.*

     PER CURIAM:

     Claimant Dorothy Cox, the widow of Ray Cox, appeals the Decision and Order
Granting Employer's Motion for Summary Judgment (92-LHC-325), and claimant Vivian
Jones, the widow of Cassie R. Jones, Sr., appeals the Decision and Order Granting
Employer's Motion for Summary Judgment (91-LHC-1360), of Administrative Law Judge
C. Richard Avery rendered on 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).[1]   We must affirm the
findings of fact and conclusions of law of the administrative law judge which are
rational, supported by substantial evidence, and in accordance with law.
O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 F.2d 359 (1965);
33 U.S.C. §921(b)(3).

     Mr. Cox, who was allegedly exposed to asbestos while working for employer,
filed a claim for benefits under the Act on January 20, 1984.  In addition, he
filed a third-party civil lawsuit against several asbestos manufacturers.  On March
7, 1987, Mr. Cox entered into a settlement of his longshore claim pursuant to
Section 8(i) of the Act, 33 U.S.C. §908(i), wherein he received the sum of
$2,500.  Mr. Cox died of asbestosis on April 9, 1990.  Thereafter, on September 21,
1990, his widow filed a claim for death benefits under the Act.  Additionally, the
third-party civil lawsuit filed by Mr. Cox was amended to a wrongful death action
on behalf of Mrs. Cox and Mr. Cox's heirs.  It is uncontested that during 1990 and
1991, claimant Cox entered into settlement agreements with four third-party
defendants without the prior written approval of employer.  The net total received
by claimant Cox from these four settlements amounted to $2,020.11.

     Mr. Jones, who had allegedly been exposed to asbestos while working for
employer, died of cancer on October 4, 1978.  His widow filed a claim for death
benefits under the Act on February 19, 1987.  In addition to her claim under the
Act, Mrs. Jones filed a third-party civil action against several manufacturers of
asbestos products.  It is uncontested that between 1987 and 1991, claimant Jones
entered into five third-party settlement agreements with several of the third-party
defendants without the prior written approval of employer.  The net total received
by claimant Jones from these five settlements was $2,902.96.

     Employer in each case filed a motion before the administrative law judge for
summary judgment.[2]   The administrative law
judge, after initially determining that there remained no issue of material fact
since both claimants settled third-party actions against asbestos manufacturers
without the prior approval of employer, found that application of the United States
Supreme Court's decision in Estate of Cowart v. Nicklos Drilling Co.,    
U.S.     , 112 S.Ct. 2589, 26 BRBS 49 (CRT)(1992), aff'g 927 F.2d 828, 24
BRBS 93 (CRT)(5th Cir. 1991)(en banc), resulted in both claims being barred
pursuant to Section 33(g) of the Act, 33 U.S.C. §933(g)(1988).  In neither
case did the administrative law judge make a finding as to whether the third-party
settlements were for an amount less than employer's liability for compensation
under the Act.  The administrative law judge granted employer's motions for summary
judgment and dismissed both claims.

     On appeal, the claimants contend that the administrative law judge erred in
granting summary judgment without making a finding, in each case, as to whether the
third-party settlements were for an amount greater or less than the total amount
of employer's liability for compensation under the Act.  Claimants thus contend
that the cases should be remanded for a comparison between the amount of
compensation to which they would be entitled under the Act and the amount of their
respective settlements, in order to determine whether Section 33(g)(1) applies. 
Additionally, claimant Jones asserts that it was improper, under 29 C.F.R. Part 18,
for the administrative law judge to grant summary judgment based on employer's
amended motion, where the prior administrative law judge in her case denied
employer's first motion for summary judgment.  Employer responds in each case,
urging affirmance of the administrative law judge's granting of summary judgment
as the claimants failed to comply with Section 33(g)(1) of the Act and thus
forfeited all rights to benefits from employer.  In the alternative, employer
asserts that even if the claimants' third-party recoveries exceeded the
compensation due under the Act, the claims would be extinguished by virtue of
Section 33(f) of the Act, 33 U.S.C. §933(f).

     Under the Rules of Practice and Procedure for Administrative Hearings Before
the Office of Administrative Law Judges, 29 C.F.R. §18.40(a), Motion for
Summary Decision, any party may move, with or without supporting affidavits, for
summary decision at least twenty days before the fixed date for any hearing.  Any
party opposing the motion may serve opposing affidavits or countermove for a
summary decision.  If the pleadings, affidavits, material obtained through
discovery or otherwise, or matters officially noticed show that there is no genuine
issue of material fact, the administrative law judge may enter summary judgment for
either party.  29 C.F.R. §§18.40(d), 18.41(a).[3] 

     The purpose of the summary judgment procedure is to promptly dispose of
actions in which there is no genuine issue as to any material fact. Hall v.
Newport News Shipbuilding & Dry Dock Co., 24 BRBS 1 (1990).  Not only must
there be no genuine issue as to the evidentiary facts, but there must also be no
controversy regarding inferences to be drawn from them. Id.  In determining
if summary judgment is appropriate, the court must look at the record in the light
most favorable to the party opposing the motion. Hahan v. Sergeant, 523 F.2d
461, 464 (1st Cir. 1975), cert. denied, 425 U.S. 904 (1976).  

     In the present cases, the question of whether the third-party settlements were
for an amount less than employer's liability for compensation under the Act is an
issue of material fact which directly relates to the applicability of Section
33(g)(1).  The administrative law judge thus erred in granting summary decisions
in favor of employer in the present cases without first rendering the necessary
calculations in order to compare claimant's settlement amounts with the amount of
employer's liability under the Act.  For the reasons discussed infra,
however, we hold that this error was harmless, and we affirm the dismissal of the
claims pursuant to Section 33(g)(1).

     Section 33(g)(1), as amended in 1984, states in pertinent part:

     (1) If the person entitled to compensation (or the person's
     representative) enters into a settlement with a third person referred to
     in subsection (a) of this section for an amount less than the
     compensation to which the person (or the person's representative) would
     be entitled under this chapter, the employer shall be liable for
     compensation as determined under subsection (f) of this section only if
     written approval of the settlement is obtained from the employer and the
     employer's carrier, before the settlement is executed, and by the person
     entitled to compensation (or the person's representative).  The approval
     shall be made on a form provided by the Secretary and shall be filed in
     the office of the deputy commissioner within thirty days after the
     settlement is entered into.

33 U.S.C. §933(g)(1)(1988).  

     We begin our analysis with a discussion of Estate of Cowart v. Nicklos
Drilling Co.,        U.S.   , 112 S.Ct. 2589, 26 BRBS 49 (CRT)(1992), wherein
the United States Supreme Court held that under the plain language of Section
33(g)(1), a claimant forfeits his right to further compensation benefits by failing
to obtain the employer's written approval of a third-party settlement.  In that
case, the claimant suffered a work-related injury and the employer paid temporary
total disability benefits for ten months.  However, the employer refused to pay
permanent partial disability benefits.  In the meantime, the claimant settled a
third-party action, but did not secure the employer's written approval of the
settlement.  The claimant argued that since the employer was not voluntarily paying
benefits at the time of the settlement, and a formal award of benefits had not been
issued, he was not a "person entitled to compensation" under Section 33(g)(1). 
Thus, the claimant argued, compliance with Section 33(g)(1) was not required.

     The Board agreed with the claimant's argument. See Cowart v. Nicklos
Drilling Co., 23 BRBS 42 (1989).  However, the United States Court of Appeals
for the Fifth Circuit reversed, holding that Section 33(g) contains no exceptions
to the written approval requirement. See Nicklos Drilling Co. v. Cowart, 927
F.2d 828, 24 BRBS 93 (CRT) (5th Cir. 1991)(en banc).  In affirming the Fifth
Circuit's decision, the Supreme Court held that the claimant "became a person
entitled to compensation at the moment his right to recovery vested, not when his
employer admitted liability . . ." Cowart, 112 S.Ct. at 2595, 26 BRBS at 51-52 (CRT).  Thus, the claimant became a person entitled to compensation at the time
he suffered his work-related injury.  Despite the employer's conceded knowledge of
the settlement, the Court held that the claimant was required to obtain the
employer's written approval of the settlement pursuant to Section 33(g)(1).  

     In Cowart, the Court explicitly noted that a claimant is not required
to obtain prior written approval of third-party settlements from an employer in two
instances: "(1) Where the employee obtains a judgment, rather than a settlement,
against a third party; and (2) Where the employee settles for an amount greater
than or equal to the employer's total liability." Cowart, 112 S.Ct. at 2597,
26 BRBS at 53 (CRT).  With regard to the latter calculation, the Board has recently
held that the term "compensation" in Section 33(g) refers only to weekly disability
benefits. Harris v. Todd Pacific Shipyards Corp.,    BRBS        , BRB Nos.
93-2227, 93-2554 (Oct. 25, 1994).  Since Section 33(g)(1) applies only where
claimant enters a third party settlement "for an amount less than the compensation
to which [the claimant] would be entitled," the amount of claimant's disability
benefits must be compared to the settlement amount.  Moreover, the Board has held
that total amount of compensation to which claimant would be entitled over his or
her lifetime is the relevant figure to be compared with the net amount of
claimant's third-party settlements in the aggregate.[4]   See Linton v. Container Stevedore Co.,    BRBS     ,
BRB No. 93-0427 (Oct. 27, 1994).

     In the instant cases, it is clear that each claimant was a "person entitled
to compensation" at the time she entered into her third-party settlement agreement.
See Yates v. Ingalls Shipbuilding, Inc., 28 BRBS 137 (1994)(Smith, J.,
dissenting on other grounds)(wherein the Board held that a potential widow was not
a "person entitled to compensation" under Section 33(g)(1) prior to the death of
her husband).  Furthermore, it is undisputed by the parties that the claimants did
not obtain written approval of their third-party settlement agreements.  Thus, the
claimants' claims for death benefits are barred by Section 33(g)(1) if the
aggregate net amounts of the settlements into which they entered without employer's
prior written approval are less than the amount of compensation to which they are
entitled under the Act. See Linton, slip op. at 5.  In the instant
cases, however, the administrative law judge granted employer's motions for summary
judgment without setting forth his calculation of the "less than" comparison
required by Section 33(g)(1). See id., slip op. at 8.  Based upon the
facts of these cases, however, we hold that the administrative law judge's error
in this regard is harmless, and that remand for the administrative law judge to
reconsider the applicability of the Section 33(g)(1) forfeiture provision would
serve no judicial purpose, since the determination as to whether the net aggregate
amounts of the third-party settlements are greater than employer's potential
liability under the Act is readily calculable based upon the claimants' own
admissions contained in their respective Answers to Interrogatories.  See,
e.g., Bundens v. J.E. Brenneman Co., 28 BRBS 20 (1994); Glenn v.
Todd Shipyards Corp., 26 BRBS 186 (1993), aff'd on recon., 27 BRBS 112
(1993)(Smith, J., concurring in the result).

     Claimants Cox and Jones each filed a death benefits claim under the Act; thus,
their potential entitlement to compensation derives from Section 9 of the Act, 33
U.S.C. §909, which provides that, during widowhood, a widow of a deceased
employee is entitled to 50 percent of the employee's average wages.  33 U.S.C.
§909(b).  Section 9(e) states that an employee's average weekly wage shall not
be less than the national average weekly wage as determined by the Secretary of
Labor.  33 U.S.C. §909(e).  As claimants' entitlement to death benefits vested
upon the dates of death of their spouses, specifically April 9, 1990 and October
4, 1978, respectively, it is a mathematical certainty that the net amounts of the
third-party settlement agreements which claimants Cox and Jones entered into,
$2,020.11 in claimant Cox's case and $2,902.96 in claimant Jones' case, are less
than the amounts due them under the Act.[5]  
Consequently, Section 33(g)(1) is applicable to the instant cases and, pursuant to
the claimants' failure to obtain employer's written approval of their third-party
settlement agreements, we hold that the administrative law judge properly
determined that their claims for death benefits are barred by Section 33(g)(1) of
the Act. See Cowart, supra.

     Accordingly, the administrative law judge's Decision and Order Granting
Employer's Motion for Summary Judgment in claimant Cox's case, BRB No. 92-2288, and
the Decision and Order Granting Employer's Motion for Summary Judgment in claimant
Jones' case, BRB No. 92-2289, are affirmed.

     SO ORDERED.




                                                                        

                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                        

                         NANCY S. DOLDER
                         Administrative Appeals Judge



                                                                        

                         ROBERT J. SHEA
                         Administrative Law Judge   

To Top of Document

Footnotes.


1)We hereby consolidate for purposes of decision employers' appeals of Administrative Law Judge C. Richard Avery's Decision and Order Granting Employer's Motion for Summary Judgment in claimant Cox's case, BRB No. 92-2288, and Decision and Order Granting Employer's Motion for Summary Judgment in claimant Jones' case, BRB No. 92-2289. 20 C.F.R. §802.104. *Sitting as a temporary Board member by designation pursuant to the Longshore and Harbor Workers' Compensation Act as amended in 1984, 33 U.S.C. §921(b)(5)(1988). Back to Text
2)In Jones, employer's original motion for summary judgment was denied by Administrative Law Judge Kenneth A. Jennings on January 2, 1992. When the case was subsequently assigned to Administrative Law Judge C. Richard Avery, employer filed an amended motion for summary judgment on March 25, 1992. Back to Text
3)The Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges contain no support for claimant Jones' assertion that employer had ten days within which to file a motion for reconsideration after Administrative Law Judge Jennings' denial of employer's initial motion for summary judgment. See 29 C.F.R. §§18.40, 18.41. Accordingly, claimant Jones' argument that employer's amended motion for summary judgment was untimely is rejected. Back to Text
4)In Harris, BRBS , BRB Nos. 93-2227, 93-2554, the Board held that in cases of multiple third-party settlements, such as the cases at bar, the net amount of the multiple settlements are to be aggregated in determining the total amount of the third-party recovery. See Harris, slip op. at 13. Back to Text
5)Claimant Cox, in her Answers to Interrogatories dated April 3, 1991, stated that she had entered into four third-party settlement agreements, the net aggregate total of which was $2,020.11. See Exhibit B. Claimant Jones, in her Answers to Interrogatories dated November 13, 1991, stated that she had entered into five third-party settlement agreements, the net aggregate total of which was $2,902.96. See Exhibit B. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document