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Travelers Insurance Co. v. Cardillo

decided.: July 19, 1955.

THE TRAVELERS INSURANCE COMPANY AND TODD SHIPYARDS CORPORATION, PLAINTIFFS-APPELLANTS,
v.
FRANK A. CARDILLO, DEPUTY COMMISSIONER, FEDERAL SECURITY AGENCY, BUREAU OF EMPLOYEES' COMPENSATION, SECOND COMPENSATION DISTRICT, AND JOSEPH TROPEA, DEFENDANTS-APPELLEES. IRA S. BUSHEY & SONS, INC., PLAINTIFF-EMPLOYER-APPELLANT, AND AMERICAN POLICYHOLDERS' INSURANCE COMPANY AND/OR AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, PLAINTIFF-INSURANCE CARRIER-APPELLANT, AND HARTFORD ACCIDENT & INDEMNITY COMPANY, PLAINTIFF-INSURANCE CARRIER-APPELLANT, AND THE STATE INSURANCE FUND, PLAINTIFF-INSURANCE CARRIER-APPELLANT, V. THORLEIF JOHANSEN, DEFENDANT-CLAIMANT-RESPONDENT, AND FRANK A. CARDILLO, DEPUTY COMMISSIONER, SECOND COMPENSATION DISTRICT, DEFENDANT-RESPONDENT. TODD SHIPYARDS CORPORATION, INC., EMPLOYER-PLAINTIFF-APPELLANT, AND MASSACHUSETTS BONDING & INSURANCE COMPANY, INSURANCE CARRIER-PLAINTIFF-APPELLANT, V. UNITED STATES DEPARTMENT OF LABOR, BUREAU OF EMPLOYEES' COMPENSATION, SECOND DISTRICT AND FRANK A. CARDILLO, AS DEPUTY COMMISSIONER AND RAYMOND LEBOWITZ, DEFENDANTS-APPELLEES.



Author: Medina

Before CHASE and MEDINA, Circuit Judges, and RYAN, District Judge.

MEDINA, Circuit Judge.

These are appeals from three separate orders entered by the United States District Court for the Eastern District of New York granting defendants' motions for summary judgment, dismissing complaints in actions brought pursuant to 33 U.S.C.A. § 921 to review and set aside as "not in accordance with law" certain compensation orders made by the Deputy Commissioner in each case, under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., and denying plaintiffs' cross-motions for summary judgment.

Although the legal questions in all these cases are substantially the same, the factual situations vary somewhat and will be summarized separately.

Tropea Award

The record discloses that claimant Joseph Tropea's history of employment during the period preceding the filing of his claim for compensation was as follows:

"(1) September 3, 1942 to November 16, 1945, employed by Todd Shipyards Corporation.

"(2) November 16, 1945 to July 29, 1948, unemployed, except for work at Rockaway Playland.

"(3) July 29, 1948 to May 24, 1949, employed by Todd.

"(4) May 24, 1949 to December 20, 1950, unemployed.

"(5) December 20, 1950 to date, employed by Todd." and that Todd Shipyards Corporation was insured by the following carriers during the relevant period:

"(1) 1940 to May 1, 1947, Fidelity and Casualty Company of New York.

"(2) May 1, 1947 to May 1, 1949, Massachusetts Bonding and ...


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