The opinion of the court was delivered by: ZAVATT
In Action No. 1, Angelo D'Amante is suing Isthmian Lines, Inc. to recover $ 25,000 damages for personal injuries he claims to have sustained on July 23, 1955 while he was aboard a lighter alongside the S.S. Steel Worker, which was moored to a pier at the Erie Basin Terminal within the Eastern District of New York and is owned by the defendant. He alleges in his complaint that on that day he was in the employ of International Terminal Operating Co. Inc., in the capacity of a longshoreman; that prior to July 23, 1955 his employer had entered into a stevedoring contract with the defendant; that on July 23, 1955 he was aboard the lighter as a longshoreman in the employ of International Terminal; that he sustained personal injuries through the negligence of the defendant and because of the unseaworthy condition of its vessel, the S.S. Steel Worker. The defendant answered the complaint. It denied the affirmative allegations of the complaint; pleaded the contributory negligence of the plaintiff as a first affirmative defense and, as a second affirmative defense, alleged in substance that the plaintiff had filed a claim against his employer for compensation under the provisions of the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C.A. § 901 et seq.); that the Deputy Commissioner of the Second Compensation District, United States Employees' Compensation Commission, had filed an order on July 31, 1956 (prior to the date when the plaintiff commenced this action) directing International Terminal and its insurer, Liberty Mutual Insurance Company, to pay compensation in the sum of $ 1,630.40 to the plaintiff; that thereafter and pursuant to that order payment of compensation was duly made to and accepted by the plaintiff before the plaintiff commenced this action, and that that payment 'operated as an assignment to the employer and/or its insurance carrier, Liberty Mutual Insurance Company, of all the rights of the plaintiff herein to recover damages for the injuries set forth in the complaint ' and, therefore, that D'Amante has no right to maintain this action.
The defendant now moves pursuant to Rule 56(b), Federal Rules of Civil Procedure, 28 U.S.C.A. for summary judgment in its favor upon the ground that D'Amante is not the proper party plaintiff.
In April, 1957, after D'Amante had accepted such compensation under the award in the said compensation order so filed, and approximately seven months after D'Amante had commenced action No. 1 in this Court, Liberty Mutual commenced action No. 2 in the United States District Court for the Southern District of New York. This action was transferred to this Court by an order entered on the consent of the defendant in that action. In action No. 2 Liberty Mutual is suing Isthmian to recover the same amount, to wit, $ 25,000 for the personal injuries allegedly sustained by D'Amante. In its complaint it alleges in substance the same allegations of D'Amante's complaint in action No. 1 and, in addition, alleges facts to show that it is entitled to institute action No. 2 pursuant to 33 U.S.C.A. § 933(i) as the insurance carrier of International Terminal, to which, it is claimed, D'Amante assigned his cause of action against Isthmian by accepting payment of compensation under the award in the compensation order so filed.
Although no answer to the complaint in this action has been filed as required by Rule 5(d), Federal Rules of Civil Procedure, 28 U.S.C.A., the moving papers include a copy of the defendant's answer, from which it appears that the defendant has denied the material allegations of the complaint and has pleaded affirmatively:
1. That D'Amante assumed the risks of his employment;
2. That D'Amante's injuries were caused by his own negligence, with no contributory negligence on the part of the defendant; and
3. That the 'complaint fails to state a claim upon which relief can be granted'.
The defendant now moves pursuant to Rule 56(b), Federal Rules of Civil Procedure, 28 U.S.C.A., for summary judgment in its favor upon the ground that there is a conflict of interests between Liberty Mutual as plaintiff and Liberty Mutual as the insurance carrier of the defendant.
Additional Information Requested by the Court
After the argument of these two motions the Court requested and received from the attorneys for Liberty Mutual and the attorneys for Isthmian certain information not set forth in the moving affidavits. The attorneys for Liberty Mutual submitted to the Court:
Their letter of October 21, 1957;
The affidavit of Leo F. Hanan sworn to October 21, 1957;
Their letter of November 22, 1957;
A copy of the policy of compensation insurance in effect between Liberty Mutual and D'Amante's employer at the time of the alleged accident;
A copy of the policy of liability insurance between Liberty Mutual and D'Amante's employer in effect at the time of the alleged accident.
The attorneys for Isthmian submitted to the Court:
A copy of the stevedoring contract between D'Amante's employer and Isthmian dated February 2, 1948, and amended in April, 1953;
The affidavit of Albert S. Commette sworn to October 23, 1957;
A photostatic copy of the letter of D'Amante's employer to Budd, Quencer & Commette dated May 14, 1957;
A photostatic copy of the letter of Liberty Mutual to Albert S. Commette dated November 18, 1956;
The letter of Budd, Quencer & Commette to the Court dated October 23, 1957.
The Relationship Between D'Amante's Employer and Isthmian; Liberty Mutual, D'Amante's Employer and Isthmian
The papers now before the Court reveal the following facts:
The stevedoring contract between D'Amante's employer and Isthmian Lines is dated February 2, 1948, and was modified by an agreement in April, 1953. It contains an indemnification clause under which International (formerly the Jarka Corporation) agrees to 'indemnify and save harmless Isthmian * * * against any and all claims, demands, actions and/or proceedings of any kind * * * that may be made or instituted against * * * them * * * by the employees of the Stevedore * * * as a result of damage or injury * * * from causes arising out of or in any way connected with, and * * *, from causes claimed to have arisen out of or in connection with the stevedoring work and operations and the use of * * * all * * * gear * * *, including ...