This is a continuation of Concurrent Jurisdiction – In Part One we discussed the historical and constitutional context of the Longshore Act/State Act jurisdictional tension, listed the Concurrent and Exclusive states, and gave examples of how the concurrent jurisdiction problem costs maritime employers money. Part Two concludes the discussion of Concurrent Jurisdiction.
But before we continue with Part Two, let’s go back to the state lists in Part One. An astute and well informed reader pointed out that according to her reading of the laws in Indiana and Kentucky these states should have been listed as “exclusive” rather than “concurrent”. That is a fair interpretation of the language in each state’s law, and it points out two problems. First, there are too many astute and well informed readers out there. Second, there is a danger in being too brief in summarily discussing nuanced issues.
So a brief (sorry) background on how I compiled my lists.
Back when I was still at the Department of Labor we decided to require authorized insurance carriers to post collateral in the same manner as authorized self-insurers. This was in response to the unpredictable behavior of state insurance departments and guarantee funds when insolvencies occurred. Our aim was to protect the Longshore Special Fund.
Since a security requirement for insurance carriers would be conditioned on several variables related to state action, we needed to collect information. We needed to know, in the event of a carrier insolvency and default, whether the state guarantee fund would pay Longshore cases and/or would the state administrator or rehabilitator pay Longshore cases under state act up to state maximum rate limits. We wrote to each state’s insurance department and followed up with telephone calls. We didn’t get many straight answers.
Information and impressions gained from that experience were the initial bases for my lists, and I have annotated the lists as I have noted new, relevant information.
One of the conclusions I’ve drawn is that if the state insurance law does not specifically cite the Longshore Act by name in its exclusions/exemptions provision, then unless I know something firsthand to the contrary I will lean toward calling that state “concurrent” to be conservative. If the Longshore Act is not cited by name, then there is too much room for a state court to interpret any exclusion as applying only to federal liability statutes such as the Jones Act and the Federal Employers Liability Act.
So even though your state’s insurance law seems to say that your state is “exclusive”, if it does not specifically cite the Longshore Act by name, it is very possible that your state will be listed by me as “concurrent” in the belief that there is room for improvement in the language of the state act. This is the situation in Indiana and Kentucky. I’m not sure whether these two states are concurrent or exclusive, but since there’s room for doubt I play it safe and list them as concurrent.
Possibly I should list a third category called “ambiguous” states. Or maybe indicate the uncertainty with regard to some states by marking the state with a question mark. Actually this is what I’ll do. Indiana and Kentucky are now officially listed in my “concurrent” list as IN(?) and KY(?).
And thank you to that reader for raising the issue.
EXAMPLES – these cases are typical of problems faced by maritime employers due to concurrent state/federal Longshore jurisdiction.
In a recent case in Maine (supposedly an exclusive state so you can see the problem with trying to compile a list. What is really needed is a uniform, comprehensive solution to the concurrent jurisdiction issue) a worker filed a Longshore Act claim and was paid Longshore Act benefits. A hospital which had provided medical services sued for reimbursement under the state workers’ compensation law, which allowed for higher medical payments than the federal fee schedule. Result: the employer paid the higher medical costs under state law and the higher indemnity benefits under the Longshore Act.
In a recent case in New York a worker was permitted to sue his employer under New York State Labor Law section 240 in a case where his claim was covered under the Longshore Act and concurrently under state law. The state court held that the lawsuit under state law was not preempted by the Longshore Act.
In recent cases in Connecticut state courts have held that longshoremen injured in the hold of a ship were concurrently covered under both the Longshore Act and state law (directly contrary to Jensen).
Similarly, in Pennsylvania a shipyard worker working in a dry dock was held by state court to be covered concurrently by state law and the Longshore Act.
In Michigan the state workers’ compensation law contains an exception to the employer’s immunity by allowing the injured worker to sue on the theory of “intentional tort”. Other states also have this exception, such as Louisiana, Texas, and Ohio.
In a civil case currently pending in Michigan a RICO fraud lawsuit by an injured worker against his employer, the workers’ compensation claims adjuster, and a defense doctor has survived a challenge and is proceeding.
Section 903(e) of the Longshore Act states, “Notwithstanding any other provision of law, any amounts paid to an employee for the same injury, disability, or death for which benefits are claimed under this Act pursuant to any other workers’ compensation law or section 20 of the Act of March 4, 1915 (relating to recovery for injury to or death of seamen) shall be credited against any liability imposed by this Act.”
So, in most instances double recovery to the injured worker is avoided, but the employer still has the burden of double costs, etc.
It would help if the courts would enforce Jensen, at least for maritime workers injured over navigable waters, but a more comprehensive solution would be for the U.S. Supreme Court to overturn Sun Ship and enforce the Longshore Act’s exclusivity under the Supremacy, Admiralty, and Commerce clauses of the U.S. Constitution.
It is unlikely that Sun Ship will be overturned, however, so the solution will have to come from either state legislatures or Congress.