United States Court of Appeals,

Fifth Circuit.

No. 91–3690.

Ernest D. SHARP, Plaintiff–Appellant,

Wausau Insurance Company, Intervenor–Appellant,

v.

JOHNSON BROTHERS CORPORATION, St. Paul Fire & Marine Insurance Co., and

Centennial Insurance Company, Defendants–Appellees.

Sept. 25, 1992.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, Chief Judge, SMITH and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Ernest D. Sharp, an employee of Johnson Brothers Corporation ("Johnson Brothers"), was

injured while performing bridge repair work and filed suit under the Jones Act, 46 U.S.C.App. § 688,

and a claim under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C.

§ 901 et seq. He eventually reached a settlement with Johnson Brothers and its compensation insurer,

th e Wausau Insurance Companies (Wausau), under the LHWCA. Pursuant to the LHWCA, an

administrative law judge ("ALJ") of the Department of Labor (DOL) entered an order approving the

settlement and discharging Johnson Brothers and Wausau upon its payment. The district court then

dismissed Sharp's Jones Act claim, holding that the election of his LHWCA remedy precluded Jones

Act relief. We affirm.

I.

Sharp was a welder/pile driver for Johnson Brothers, helping to replace a railroad drawbridge

over Lake Pontchartrain. He worked abroad a fleet of barges that Johnson Brothers had chartered.

In November 1985, a crane dropped a load of iron on him while he worked on a tugboat in the lake,

injuring his back, knee, and ankle. Johnson Brothers had obtained protection and indemnity insurance

for the tug from St. Paul Fire & Marine Insurance Co. ("St. Paul"), which provided excess coverageon the barges, which also were insured by Centennial Insurance Company ("Centennial").

Johnson Brothers initiated compensation proc eedings, filing a notice with the DOL, which

issued a letter informing Johnson Brothers that Sharp's injury fell "within the p urview" of the

LHWCA and that Johnson Brothers had filed a tardy accident report. The DOL also notified Sharp

that his injury "appear[ed] to fall under the jurisdiction of the [LHWCA]." Johnson Brothers then

began to pay Sharp the benefits he would be due under the LHWCA.

Sharp filed a Jones Act suit in November 198 6. In 1987 Johnson Brothers terminated his

harbor worker benefits, and Sharp filed an LHWCA claim with the DOL. Johnson and Wausau raised

the defense that Sharp was a Jones Act seaman and thus not eligible for longshore compensation.

After four continuances and a trial, the district court granted a directed verdict against Sharp

on his Jones Act claim in June 1989 on the grounds that the barges were not vessels and that he was

not a seaman. Sharp filed a timely notice of appeal in October 1989.

In September 1989, though, Sharp, Johnson Brothers, and Wausau settled Sharp's LHWCA

claim, agreeing that Sharp would receive $225,000 and in return would release Wausau completely

and would release Johnson Brothers to the extent that it was uninsured by Centennial and St. Paul.

A final release was executed on October 5, 1989, and an ALJ approved the settlement pursuant to

the LHWCA, 33 U.S.C. § 908(i)(1). St. Paul and Centennial assert that they knew nothing of the

settlement at that time.

This court heard oral argument on the appeal of the district court's directed verdict in August

1990, and, inexplicably, no one representing Sharp, Wausau, o r Johnson Brothers mentioned the

settlement. In November 1990, we reversed the district court on t he ground that a fact question

existed as to whether Sharp worked aboard a fleet of vessels and thus was a seaman. S harp v.1 As we conclude that the court did not err in barring Sharp's Jones Act proceeding, we do not

consider the additional bases for the district court's decision. Johnson Bros. Corp., 917 F.2d 885 (5th Cir.1990).

In August 1991, the district court granted s ummary judgment against Sharp, holding that,

since as a consequence of the settlement he had elected his remedy as a harbor worker, he had no

right of direct action against either of the indemnity insurers, St. Paul or Centennial, and that Johnson

Brothers had violated its duty of cooperation with its insurers. 1

II.

A.

The district court ruled that the settle ment t he DOL approved constituted an election of

remedies and precluded the filing of a suit based upon general marit ime law or the J ones Act. It

based its decision upon Vilanova v. United States, 851 F.2d 1, 4 (1st Cir.1988) (Wisdom, J., sitting

by designation), cert. denied, 488 U.S. 1016, 109 S.Ct. 811, 102 L.Ed.2d 801 (1989), which states

that Congress did not intend to give injured workers two chances to maximize their compensation

award. The district court reasoned that the entry of an order by the ALJ constituted a finding that

the injuries were compensable under the LHWCA and that by seeking, and acquiescing to, the

finding, Sharp is collaterally estopped from contesting LHWCA coverage.

B.

Sharp argues that the district court misunderstood what occurred. He argues that because

t here is a "zone of uncertainty" between the Jones Act and the LHWCA, an injured worker may

pursue both remedies simultaneously. S ee Simms v. Valley Line Co., 709 F.2d 409, 412 (5th

Cir.1983). He also points to a number of commentators who argue that a worker should be able to

accept benefits without losing his Jones Act claim, s ince t he purpose of the compensation and

recovery schemes is to protect the worker during his time of need. S ee id. (citing treatises). Further,there is no danger of double recovery, as one recovery is credited against the other.

Sharp further argues that collateral estoppel should not apply, because the issue of whether

he was a seaman or a harbor worker was not litigated; only a consent judgment was entered in his

case. According to Sharp, a consent judgment does not give rise to estoppel, as the issues underlying

the judgment are neither actually litigated nor necessary and essential to the judgment. S ee Hughes

v. Santa Fe Int'l Corp., 847 F.2d 239 (5th Cir.1988) (finding no issue p reclusion). According to

Sharp, the ALJ reviewed the agreement only for fairness, not jurisdiction.

Sharp calls our attenti on to Southwest Marine v. Gizoni,

––– U.S.

––––, 112 S.Ct. 486, 116

L.Ed.2d 405 (1991), issued shortly before he filed his opening brief. In G izoni, a rigging foreman

who worked on floating platforms and sometimes did seaman's work was injured. He submitted a

claim for, and received, medical and compensation benefits from Southwest Marine under the

LHWCA and then sued under the Jones Act, alleging that he was a seaman injured by his employer's

negligence. The district court granted summary judgment because he was not a seaman and because

he was a harbor worker precluded by the exclusive remedy provisions of the LHWCA from bringing

his a ct io n. The Ninth Circuit reversed, saying Gizoni's status was an issue of fact and that the

LHWCA does not cover seamen, so he might be eligible for a Jones Act award. G izoni v. Southwest

Marine, 909 F.2d 385 (9th Cir.1990).

The Supreme Court affirmed the court of appe als, reasoni ng that the two statutory

compensation regimes are mutually ex c lusive and that a marit ime worker is limit ed to LHWCA

remedies only if no genuine fact issue exists as to whether he is a Jones Act seaman. ––– U.S. ––––,

112 S.Ct. at 492. The Court also stated that it found no indication in the LHWCA that Co ngress

intended to preclude or stay traditional Jones Act suits in the district courts. I d. at ––––, 112 S.Ct.

at 493.Most relevantly for the instant appeal, the Court stated that it is "universally accepted" that

an employee who receives vo lunt ary payments under the LHWCA without a formal award is not

barred from subsequently seeking relief under the Jones Act, because "quite obviously" the question

of coverage has never actually been litigated. I d. at ––––, 112 S.Ct. at 493–94. The Court observed

that because the LHWCA provides tha t any amounts paid under the Jones Act shall be credited

against any liabilit

y imposed under the LHWCA, the LHWCA does not co mprehend a preclusive

effect. Finally, the court rejected an estoppel argument, since there is no threat of double recovery,

stating that the estoppel argument "would force injured marit ime workers to an election of remedies

we do not believe Congress to have intended." Id. at –––– n. 5, 112 S.Ct. at 494 n. 5.

C.

Johnson Brothers, St. Paul, and Centennial di st inguish G izoni on the basis that the Court

states that "voluntary payments under the LHWCA without a formal award" do not bar Jones Act

relief but that here the filed settlement agreement of a compensation claim does constitute a "formal

award." We agree.

It is beyond cavil that me rely accepting voluntary payments under the LHWCA without a

formal award does not bar a worker from filing a Jones Act suit. S ee id. at ––––, 112 S.Ct. at 493;

see also Boatel, Inc. v. Delamore, 379 F.2d 850 (5th Cir.1967). Here, though, Sharp obtained a

settlement agreement and a compensation orde r issued by the ALJ. We have treated such an

agreement and order as a "formal award." S ee Newkirk v. Keys Offshore, 782 F.2d 499, 501–02 (5th

Cir.1986); s ee also Rodriguez v. Compass Shipping Co., 617 F.2d 955, 958–59 (2d Cir.1980), aff'd,

451 U.S. 596, 101 S.Ct. 1945, 68 L.Ed.2d 472 (1981).

Sharp argu es t hat the settlement agreement does not dispose of the issue of coverage. In

Simms, 709 F.2d at 412, cited in Gizoni, we quoted legal scholars who argued that even the payment

of benefits pursuant to a formal award in a contested proceeding might not be fatal to a Jones Act2 In notifying the parties of the ALJ's ruling, the Deputy Commissioner of the DOL informed

them that if the employer/insurance carrier failed to pay the compensation award within 10 days, it

would be liable for an additional 20%. action if the compensation award was made without a proper adjudication of the claimant's status as

a harbor worker. I

d. at 412 n. 5. We never reached that issue, however, as we dismissed t he

petitioner's appeal as premature.

It is true that LHWCA coverage was never litigated in an adversarial proceeding. But Sharp

availed himself of the statutory machinery to bargain for an award, and he had the full opportunity

to argue for (or against) coverage. He filed a claim for LHWCA benefits, invoking the jurisdiction

of the DOL. Pursuant to 33 U.S.C. § 908(i)(1), the ALJ considered Sharp's testimony, as well as the

parties' stipulations and their settlement, before issuing its findings of fact and order extingu ishing

Johnson Brothers's and Wausau's liability for LHWCA benefits.

Having obtained the order of the ALJ and the aegis of the DOL to ratify and enforce his

settlement, Sharp ensured that his rights were more secure under the agreement than they would have

been if the settlement were considered merely a contract between the parties. 2 It follows that where

the ALJ issues a compensation order ratifying a settlement agreement, a "formal award" should be

deemed to have been made under Gizoni, and the injured party no longer may bring a Jones Act suit

for the same injuries.

Our holding is consistent with the purpose of the LHWCA, as outlined in Fontenot v. AWI,

Inc., 923 F.2d 1127 (5th Cir.1991). The LHWCA was no t designed to create a mere safety net,

guaranteeing workers a minimum award as they seek greater rewards in court. Rather, it has a benefit

to employers, too, giving them limited and predictable liability in exchange for their giving up their

abilit y to defend tort actions. I

d. at 1132 ( quoting Morrison–Knudsen Constr. Co. v. Director, Office

of Worker Compensation Programs, 461 U.S. 624, 636, 103 S.Ct. 2045, 2052, 76 L.Ed.2d 194

(1983)). Permitting a Jones Act proceeding after a formal compensation award here would defeat3 As a final note, we are distressed by the conduct of the attorneys for Sharp, Johnson Brothers,

and Wausau during the previous appeal. Although we have no basis upon which to ascertain their

motives, we are surprised that the parties failed to bring to our attention the fact that they had

settled at least one aspect of their dispute. We recognize that counsel may legitimately have

believed that the LHWCA settlement was irrelevant to the Jones Act action. Nevertheless, candor

and respect for this court would dictate that the parties inform us of so significant a development

in their litigation. t he purpose of the LHWCA, as well as work unfairness, because, as here, employers oft en have

different insurance carriers for workers' compensation claims and tort claims, so the compensation

insurer, by guaranteeing a minimum award, necessarily would reduce the abilit y of the tort insurer to

effect a settlement.

Nor is our holding inconsistent with Gizoni. In that case the Court held t hat an injured

marit ime worker did not have to choose between pursuing his potential remedies under the LHWCA

and the Jones Act. There is a difference, though, between saying a plaintiff may p ursue only one

remedy and declaring that he may receive only one award.

We agree that Congress did not intend that a worker forfeit his right to pursue one remedy

when he pursues another. Otherwise, a plaintiff might fail to receive a LHWCA award, because the

ALJ considered h im a seaman, but be barred from Jones Act relief because he pursued what he

believed were his remedies under the LHWCA.

Nor should an employer be able to avoid Jones Act liabilit y by voluntarily paying LHWCA

benefits that a needy worker cannot but accept while awaiting trial. See Gizoni, ––– U.S. at ––––,

112 S.Ct. at 493; T

ipton v. Socony Mobil Oil Co., 375 U .S. 34, 37, 84 S.Ct. 1, 3, 11 L.Ed.2d 4

(1963). But Congress did not intend that the worker be able to pick and choose his remedy based

upon which has conferred upon him a larger award. That is, the LHWCA was not intended to be a

"stepping stone on the way to a jury award." Fontenot, 923 F.2d at 1133. 3

The judgment of the district court is AFFIRMED.