The opinion of the court was delivered by: ZAVATT
The complaint herein asks this Court to review and set aside as not in accordance with law a certain compensation order filed by the Deputy Commissioner pursuant to the provisions of the Longshoremen's and Harbor Workers' Compensation Act of March 4, 1927, 44 Stat. 1424, 33 U.S.C.A. 901 et seq., which order awarded compensation to Charles McDwyer, a claimant, for permanent partial loss of hearing resulting from exposure to injurious industrial noises in the course of his employment. The answer requests the affirmance of the aforesaid order. There is no dispute as to any of the material facts or as to the entitlement of Charles McDwyer, the claimant, to compensation. The only dispute is as to which of the two insurance carriers involved, The State Insurance Fund or the Indemnity Insurance Company of North America, should be held liable as a matter of law for said compensation. Accordingly, plaintiff The State Insurance Fund has moved, pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. for summary judgment in its favor, and defendant Arnold J. Quigley, the Deputy Commissioner involved, has cross-moved for the same relief in his favor.
For twenty years prior to the filing of his claims, claimant was employed as an outside machinist in the repair and maintenance of vessels in various shipyards. In the course of this employment, he was exposed to loud industrial noises caused by other employees, who were working around him. He was employed intermittently by plaintiff-employer during the four or five years prior to the discovery of his occupational loss of hearing. The last day he worked for plaintiff-employer prior to such discovery was September 14, 1956. He did not return to work until October 29, 1956. During the period September 15 through October 28, 1956, claimant was out on strike. On October 25, 1956, at 5 P.M., claimant was examined by Dr. Abraham I. Goldner, an ear specialist. As a result of this examination, claimant discovered for the first time that he had a binaural loss of hearing due to his employment. Claimant then filed his claim for compensation with the Deputy Commissioner on October 30, 1956.
The State Insurance Fund insured plaintiff-employer's compensation liability for the period 12:01 A.M. of October 25, 1950, through 12:01 A.M. of October 25, 1956. The Indemnity Insurance Company of North America insured such liability for the period 12:01 A.M. of October 25, 1956 through 12:01 A.M. of October 25, 1957. From 12:01 A.M. to 5 P.M. of October 25, 1956, the claimant did not work and, therefore, was not exposed to any injurious stimuli. Thus he had not worked or been so exposed between the effective date of the compensation coverage of the Indemnity Insurance Company of North America and the date when he first became aware of his binaural loss of hearing due to his employment. On September 13, 1957 the Deputy Commissioner made an award of compensation against the employer and determined that the plaintiff, The State Insurance Fund, was the carrier liable for payment of the award. He held '* * *; that The State Insurance Fund insured the employer during the last employment in which the claimant was exposed to injurious stimuli; that because of such insurance coverage, The State Insurance Fund is the liable carrier and is responsible for compensation payments; * * *' In its complaint the plaintiffs-appellants seek a decree setting aside and adjudging null and void the order and award of September 13, 1957; enjoining the defendant-appellee, Deputy Commissioner, from enforcing the said order and directing the defendant-appellee, Indemnity Insurance Company of North America, to reimburse The State Insurance Fund for the moneys it paid to the claimant pursuant to the award.
This question was considered in Travelers Insurance Company v. Cardillo, 2 Cir., 1955, 225 F.2d 137, certiorari denied Ira S. Bushey & Sons, Inc., v. Cardillo, 350 U.S. 913, 76 S. Ct. 196, 100 L. Ed. 800. There, three compensation orders were made by the deputy commissioner with reference to the separate claims of Tropea, Johansen and Lebowitz, each of whom claimed a permanent loss of hearing due to his employment. Tropea was employed by Todd Shipyards Corporation (hereinafter referred to as Todd) as a sheet metal worker and throughout the various periods of his employment worked in noisy places. Early in 1953 he experienced difficulty with his hearing when he detected a temporary ringing in his ears. In April or May of that year he began to notice some impairment in his hearing which persisted. On September 4, 1953 he consulted an ear specialist who advised him that he had a permanent loss of hearing due to his employment. On September 30th of that year Tropea filed a claim with the deputy commissioner for compensation for occupational loss of hearing. Tropea had been employed by Todd as a sheet metal worker throughout various periods as follows: September, 1942 to November, 1945; July, 1948 to May, 1949; December 20, 1950 to and beyond the date when he filed his claim. Todd was insured by the following carriers during the relevant period:
1940 - May 1, 1947 - Fidelity & Casualty Co.
May 1, 1947 - May 1, 1949 - Massachusetts Bonding & Insurance Company
May 1, 1949 on - - Travelers Insurance Company
Thus Travelers was the carrier from the time when the claimant first began experiencing difficulty with his hearing to and beyond the time when the ear specialist advised him that he had a permanent loss of hearing due to his employment. During this period the claimant continued in the employ of Todd and continued to be exposed to the noise to which he had been exposed during his previous periods of employment by Todd. During his last period of employment by Todd, i.e., December 20, 1950, on, Travelers Insurance Company was the carrier insuring Todd. The deputy commissioner found that it was during this last period of employment that the injurious and accumulated effects of the occupational exposure manifested themselves and concluded that Travelers was liable to pay the award. Travelers brought an action in this District (similar to that in the instant case) to review the order of the deputy commissioner and joined as parties defendant the carriers who had insured Todd prior to 1950. These carriers moved for summary judgment. The motion was granted by our then Chief Judge Inch. From the order entered thereon Travelers appealed and the Court of Appeals affirmed Judge Inch's order.
Lebowitz had been employed by Todd as a marine electrician from 1942 to and beyond the date when he filed a claim for compensation and as such was exposed to noises. In January, 1953 he became aware of noises and ringing in his ears and on August 22, 1953 consulted an ear specialist who informed him that he had a permanent loss of hearing due to his employment. He filed a claim on September 16, 1953. Todd had been insured by the following carriers during the claimant's period of employment:
Feb. 6, 1942 - May 1, 1947 Fidelity & Casualty Co.
May 1, 1947 - May 1, 1949 Massachusetts Bonding & Insurance Company
May 1, 1949 - Aug. 22, 1953 Travelers Insurance Company
The deputy commissioner concluded that the three carriers who successively covered Todd during the period of Lebowitz' last employment (from 1942 on) were jointly, equally and severally liable to pay the award because the three of them covered the employer during the period of the claimant's last employment. Only Massachusetts Bonding & Insurance Company appealed from the award by bringing an action in this District. The defendant's motion for summary judgment was granted and the Massachusetts Bonding & Insurance Company appealed.
Johansen was employed by Ira S. Bushey & Sons, Inc. 1930 to 1940; by the United States Navy Yard in Brooklyn from 1940 to 1942 and by Ira S. Bushey & Sons, Inc. from 1942 to the date when he filed a claim for compensation. During all the periods of these employments he worked as an iron worker, ship fitter and ship carpenter and was constantly exposed to loud noises. In December, 1952 he noticed buzzing and ringing in his ears and in January or February, 1953 became aware of a loss of hearing which he then thought was of a temporary nature. When the impairment of hearing continued, he consulted an ear specialist on September 16, 1953 who informed him that he had a permanent loss of hearing due to his employment. On October 5, 1953 the claimant filed a claim with the deputy commissioner to recover for such permanent hearing loss. The deputy commissioner concluded that Ira S. Bushey & Sons, Inc., the last employer in whose employment Johansen was continuously exposed for eleven years, was liable for payment of compensation and that the insurance carriers who successively covered the employer during that last period of employment (1942 on) were jointly, equally and severally liable to pay the award. During the period of this last employment Ira S. Bushey & Sons, Inc. was insured by three companies: American Policyholder's ...