Plaintiff, a welder on a stationary platform on the outer continental shelf off the coast of Louisiana, filed suit in the Western District of Louisiana alleging that he was intentionally injured by a co-employee while working for Defendant. Plaintiff was carrying a lifeline rope from one location to another when the co-employee “intentionally stepped on the rope,” thus jerking him backward. Claimant slipped, fell, and allegedly injured his neck, left shoulder, low back, and left knee. The issue before the court on Defendant’s Motion for Summary Judgment was whether the Longshore and Harbor Workers’ Compensation Act’s (“LHWCA”) exclusivity provision barred Plaintiff’s federal court lawsuit.
The LHWCA defines “injury” to mean “accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person direct against an employee because of his employment.” See 33 U.S.C. § 902(2) (2013) (emphasis added). Further, the LHWCA makes an employer’s liability under the workers’ compensation scheme exclusive. See 33 U.S.C. § 905(a) (2013) (“The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee . . . .”).
The court noticed that “[n]othing in the language of the provisions identifies an intentional tort exception, and . . . the Fifth Circuit has ‘not yet expressly recognized’ such an exception.” The court cited to Fisher v. Halliburton, a Defense Base Act case, to note that an intentional tort exception could be recognized because an “accidental injury” has to be accidental instead of intentional. But the court’s statements about intentional torts was merely dicta because all allegations against Defendant were couched in terms of negligence instead of intentional torts. Further, the law is clear that the LHWCA can cover injuries arising from employee disputes, pranks, or horseplay, and “[t]here is no evidence that the prank initiated by [the co-employee] was done for anything other than the stated purpose of ‘playing,’ ‘joking,’ and ‘making the time go by’ in the restrict environment of an offshore platform. Accordingly, summary judgment against Plaintiff was appropriate.
Latimer v. Chet Morrison Contractors, No. 11-CV-806, 2013 WL 5592967 (W.D. La. 10/09/13).
Note: The court ventured into a discussion of the “zone of special danger” that I omitted from this summary. The “zone of special danger” discussion is out of place in this Outer Continental Shelf Lands Act (“OCSLA”) case. Only a couple of cases address the applicability of the “zone of special danger” doctrine to OCSLA claims, and those cases arise out of the Western District of Louisiana. Latimer, 2013 WL 5592967, at *5; see also Hotard v. Devon Energy Corp., L.P., No. 07-1476, 2008 WL 2228922, *5-6 (W.D. La. 5/29/08) (using the “zone of special danger” doctrine in an OCSLA claim to establish coverage). The Benefits Review Board, on the other hand, specifically stated that the “zone of special danger” does not apply to OCSLA claims. See Phillips v. PMB Safety & Regulatory, Inc., BRB No. 09-0614, 2010 WL 711107 (2010) (published) (“We reject claimant’s contention that the ‘zone of special danger’ doctrine is applicable in this OCSLA case. The ‘zone of special danger’ doctrine has limited application to cases arising under the Defense Base Act and the District of Columbia Workmen’s Compensation Act.”). In Lattimer, the court reached the correct conclusion, and any error made by the court in discussing the “zone of special danger” doctrine was harmless.
Update: Be sure to check out John Chamberlain’s Latimer post at John’s Longshore and Defense Base Act Blog.