Maintenance versus repair for the applicability of the LHWCA

Maintenance versus repair for the applicability of the LHWCA

By: Kevin Phillips

Edited by: Molly MacKenzie 

WESTLAW: Monroe v. Great Lakes Dredge & Dock Co., LLC, No. 2:14-cv-264, 2014 WL 3858535 (E.D. Va. Aug. 4, 2014);  LEXIS: 2014 U.S. Dist. LEXIS 107506The decedent’s estate filed suit in state court against the employer and owner of a crane barge and the third party owner of another barge, alleging that both negligently caused the death of the employee, who was crushed between the barge and the crane’s cargo. Defendant Great Lakes Dredge & Dock Co., LLC (“Great Lakes”), who owned the location where the accident occurred and the other barge filed notice to remove to federal court on the grounds of both diversity and admiralty jurisdiction. Plaintiff filed a Motion to Remand.In responding to Plaintiff’s Motion to Remand, Defendant Great Lakes argued that Defendant Lyon Shipyard, Inc. (“Lyon”), which employed plaintiff, was fraudulently joined and that once that party was separated from the lawsuit, diversity would be satisfied. The court noted that the party asserting fraudulent joinder must prove “the impossibility of a cause of action or bad faith.” In addressing whether the employer was fraudulently joined, the court turned to the issue of whether the suit was barred by the provisions of the Longshore Act.The court held that the Longshore Act bar does not apply to an employee engaged in routine maintenance of the employer’s vessel. Great Lakes argued that Plaintiff was engaged in ship repair as opposed to maintenance when he changed the drag heads on a dredge, and thus any negligence action against the employer as owner was barred. Plaintiff alleged that the decedent was preserving the vessel’s current condition by replacing functional drag heads with different versions, and he was therefore engaged in routine maintenance. As such the exclusive remedy provision of the Longshore Act (33 U.S.C. Sec. 905(b)) did not preclude a negligence suit against the employer as owner of the vessel. The court found that Plaintiff need only present a “potentially viable argument against the applicability of the LHWCA’s exclusive remedy provision,” which the Plaintiff had done in this instance by alleging that the decedent was preserving and not repairing the vessel. As the LHWCA’s exclusive remedy provision did not apply, Plaintiff could bring a negligence claim against Lyon, who had not been fraudulently joined.

Moreover, the court found that it did not have jurisdiction to hear the case and, as such, could not consider Lyon’s Motion to Dismiss.