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HERNANDEZ v. COSTA ARMATORI

March 30, 1979

Juan HERNANDEZ, Plaintiff,
v.
COSTA ARMATORI, S.p.A., PIA COSTA, Defendant



The opinion of the court was delivered by: NICKERSON

MEMORANDUM AND ORDER

Plaintiff, a longshoreman, brought this suit for damages due to injuries sustained in January 1974 while he was employed by a stevedore, John W. McGrath Corp. ("McGrath"), on defendant's vessel.

 He sought compensation under the Longshoremen's and Harbor Workers' Compensation Act ("the Act"), 33 U.S.C. §§ 901 et seq., and on January 31, 1975, he, his representative, McGrath's representative, and a United States Department of Labor claims examiner agreed in writing to an award of $ 5,827.10 for a permanent partial disability. McGrath paid plaintiff this amount on February 6, 1975. On December 22, 1976, some twenty-two and one-half months later, plaintiff brought this action.

 Defendant moves for summary judgment, asserting that plaintiff's claim has been assigned to McGrath by operation of Section 933(b) of the Act since he did not bring the action within six months of payment of the award.

 Under Section 933(a) an employee may accept compensation from the employer and still retain the right to sue a third person for his injuries. However, Section 933(b) provides that acceptance of compensation "under an award in a compensation order filed by the deputy commissioner or Board shall operate as an assignment" of the claim to the employer unless the employee brings action within six months after the award.

 The full text of Section 933(b) recites:

 
"Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner or Board shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award."

 Plaintiff contends that he has not lost his right to sue because (1) the settlement agreement was not an "award in a compensation order filed by the deputy commissioner or Board" and there was no assignment and (2) that, even assuming an assignment, there is such a conflict between plaintiff's interests and those of the assignee-employer that he should be allowed to prosecute the action.

 The Act originally required an employee to elect whether to accept compensation or to pursue his remedy against a third party. At that time mere acceptance of compensation operated as an assignment to the employer of any claim against the third person. 44 Stat. 1440. A 1938 amendment added the proviso that acceptance was to be deemed an assignment only if the compensation was paid "under an award in a compensation order filed by the deputy commissioner or Board". In 1959 further amendments eliminated the requirement that the employee make an election and enacted the present language permitting him six months to bring suit in his own name.

 The purpose of the 1938 amendment requiring "an award in a compensation order" before acceptance would be deemed an assignment was evidently to cause the employee to focus on the consequences of acceptance. Presumably he would thus be aware of his loss of the right to bring suit against a third party. See H.R.Report No.1945, 75th Cong., 3rd Sess. (1938). The courts held that to accomplish this end it was sufficient that there be "some official action" by the deputy commissioner and that entry of a formal order was not required. Grasso v. Lorentzen, 149 F.2d 127, 128-129 (2d Cir.), Cert. denied, 326 U.S. 743, 66 S. Ct. 57, 90 L. Ed. 444 (1945). See also Toomey v. Waterman S. S. Corp., 123 F.2d 718, 721 (2d Cir. 1941).

 Plaintiff contends that here the compensation agreement does not satisfy the statute because it was signed by a claims examiner and not a deputy commissioner. However, the deputy commissioner may delegate his duties with regard to conferences and agreements as to disputed claims. 20 C.F.R. § 702.312. Moreover, the purpose of the 1938 amendment noted above hardly requires execution of every order by a deputy commissioner. It is true that some early district court opinions said that his signature was necessary. See, e.g., Sessa v. Weeks Stevedoring Co., 56 F. Supp. 50 (S.D.N.Y.1943). But those cases were decided prior to the 1959 amendments abolishing the election requirement and postponing the statutory assignment for six months after acceptance of the award. The decisions were motivated by the harshness of the statutory provision requiring the employee to make an election and effecting an immediate assignment. In any event this court does not regard those opinions as authoritative and holds that the deputy commissioner may delegate the power to make an award satisfying Section 933(b).

 The settlement agreement in this case reads: "We, the undersigned, having attended an informal conference, and having received a copy of the signed agreement, in this case on 1/31/75, agree, by the issuance of a Compensation Order, to the following disposition." After specifying the disposition, the settlement concludes: "The employer-carrier shall make payment promptly following the conference, without regard to the receipt of the formal compensation order, in accordance with Section 702.315(a) of Regulations." This served to focus plaintiff's attention on the consequences of acceptance and is the equivalent of a "compensation order" for purposes of Section 933(b). Rodriguez v. Compass Shipping Co. Ltd., 456 F. Supp. 1014, 1020 (S.D.N.Y.1978), reached a similar conclusion.

 Since plaintiff failed to commence suit within the requisite six months, his right of action against defendant was assigned to his employer.

 Plaintiff, citing Czaplicki v. The Hoegh Silvercloud, 351 U.S. 525, 76 S. Ct. 946, 100 L. Ed. 1387 (1956), argues that, even assuming a statutory assignment, a "conflict of interest" between himself and his employer exists ...


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