Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-31164

ROBERT HARVEY

Plaintiff - Appellee

v.

LOUISIANA INSURANCE GUARANTEE ASSOCIATION

Defendant - Appellant

Appeal from the United States District Court 

for the Middle District of Louisiana

USDC No. 3:08-cv-00459

Before KING, GARWOOD, and DAVIS, Circuit Judges.

PER CURIAM:*

The Louisiana Insurance Guaranty Association (“LIGA”) appeals the

district court’s order granting summary judgment against it in an enforcement

action. Because the supplemental default order filed with the district court is

“in accordance with law,” we affirm the district court. 

I.

Robert Harvey was an employee of Baton Rouge Marine Contractors

(“BRMC”) from 1965-1977, during which time he was exposed to asbestos. An

United States Court of Appeals

Fifth Circuit

F I L E D

June 4, 2009

Charles R. Fulbruge III

Clerk
No. 08-31164

2

administrative law judge (“ALJ”) determined that under the Longshoremen and

Harbor Workers’ Compensation Act (“LHWCA”), BRMC and LIGA, which was

in the role of BRMC’s insurer, were liable for Harvey’s claims related to this

exposure. BRMC’s liability insurer at the time of Harvey’s employment,

Employer’s National Insurance Corporation (“Employer’s”), had been declared

insolvent, and the ALJ determined that LIGA stepped into Employer’s shoes and

took on Employer’s obligations. LIGA was created by the Louisiana legislature

to pay claims against insurance companies that have been declared insolvent.

Neither LIGA nor BRMC paid Harvey’s claims, and Harvey filed a request

for a supplemental order to be issued under section 18 of the LHWCA. Under

§ 918(a), an individual may receive a supplemental order of default if payment

under an award of compensation is not made within thirty days. 33 U.S.C.A.

§918(a). The District Director issued a Supplemental Default Order, requiring

LIGA to pay the claim amount. The order also added a twenty percent penalty

for LIGA’s failure to timely pay, and declared both the penalty and the original

claim amount in default. Harvey filed the current action to enforce the

Supplemental Default Order. LIGA then filed Third-Party Demands against a

number of insurers who issued liability policies to BRMC for years other then

when Harvey was employed. Both Harvey and BRMC moved for summary

judgment, which the district court granted, and the district court also dismissed

the Third-Party Demands for lack of subject matter jurisdiction. LIGA sought

a stay of the district court’s judgment, which was granted by this court, and now

appeals the grant of summary judgment.

II

The district court shall “enter judgment for the amount declared in default

by the supplementary order if such supplementary order is in accordance with

law.” § 918(a). We review a grant of summary judgment de novo, applying the

same standards as the district court. Hayward v. U.S. Dep’t of Labor, 536 F.3d
No. 08-31164

 Section 918(a) provides the procedures that are to be followed in obtaining a 1

supplemental order:

(a) In case of default by the employer in the payment of compensation due under any

award of compensation for a period of thirty days after the compensation is due and

payable, the person to whom such compensation is payable may, within one year after

such default, make application to the deputy commissioner making the compensation

order or a supplementary order declaring the amount of the default. After

investigation, notice, and hearing, as provided in section 919 of this title, the deputy

commissioner shall make a supplementary order, declaring the amount of the default,

which shall be filed in the same manner as the compensation order.

3

376, 379 (5th Cir. 2008). Therefore, we review the Supplemental Default Order

to determine if it is in accordance with law.

In Abbott v. Louisiana Insurance Guaranty Ass’n, 889 F.2d 626 (5th Cir.

1989), this court examined the standards for determining if a supplemental

order issued under § 918(a) is in accordance with law. There, we said “a

supplemental order of default is ‘in accordance with law’ as required by section

18(a) [of the LHWCA] if the Deputy Commissioner has correctly followed the

procedures outlined”in that section. “The Deputy Commissioner must 1

investigate the claimant’s application, provide notice of the claim to interested

parties, and give the parties an opportunity for a hearing in the manner

specified in section 19 of the [LHWCA].” Abbott, 889 F.2d at 629. The amount

of the award must be calculated, and the supplemental order must be filed in the

same manner as a compensation order, and the Deputy Commissioner must

notify the responsible parties. § 918(a); Abbott, 889 F.2d at 629. 

Here, LIGA presents no argument that the Supplemental Default Order

is not in accordance with law under these criteria. LIGA does not allege that the

commissioner failed to investigate Harvey’s claim, or that it did not receive

notice. The undisputed facts establish that all necessary steps were taken. The

parties received notice of the claim, and were all represented at a conference

before the ALJ.
No. 08-31164

4

Instead, LIGA argues that the insurance companies which covered BRMC

for years other than when Harvey was employed should be held liable. These

insurance companies appeared on behalf of themselves and BRMC at the

hearing before the ALJ without any “reservation of rights” to deny coverage.

LIGA argues that these insurance companies have therefore waived any

coverage defense available to them; thus they have coverage and must pay

Harvey’s claims. Under the statute creating LIGA, individuals must exhaust

their claims against all other available insurance before proceeding against

LIGA. LA.REV. STAT. ANN. § 22:2062(A) (2005). It follows, according to LIGA, that

Harvey must pursue his claims against these other insurance companies before

Harvey can collect from LIGA. LIGA also argues that the district court’s

dismissal of its Third-Party Demands against the other insurance companies for

lack of subject matter jurisdiction was improper.

Despite LIGA’s arguments, this court’s review is limited to whether the

Supplemental Default Order is in accordance with law. It is not within this

court’s purview to determine “the procedural or substantive correctness of the

underlying compensation orders.” Abbott, 889 F.2d at 630. Therefore, the grant

of summary judgment and the dismissal of LIGA’s Third-Party Demands were

proper. Review of the substantive correctness of an order is left to the Benefits

Review Board (“BRB”), and LIGA’s appeal to that body is currently pending. See

Jourdan v. Equitable Equip. Co., 889 F.2d 637, 640 (5th Cir. 1989) (“The issue

of which carrier is ultimately liable. . . should have been raised in the

proceedings before the ALJ and appealed to the BRB after the ALJ issued the

Compensation Order.”). In its appeal before the BRB, LIGA is presenting the

same arguments it presents here. After the BRB reviews the merits of LIGA’s

claims and issues its order, LIGA can then appeal that order to this court under

the provisions of 33 U.S.C. § 921(c), at which this time the court can determine
No. 08-31164

5

if the ALJ’s decision was supported by substantial evidence. See La. Ins. Guar.

Ass’n v. Abbott, 40 F.3d 122, 124 (5th Cir. 1994). 

LIGA also argues that enforcing the judgment against it while its appeal

before the BRB is pending violates its due process rights. Under § 921(b)(3), the

BRB can issue a stay as to the payment of an award amount if “irreparable

injury” can be demonstrated by the payor. LIGA did not file a motion for stay,

and argues that the irreparable injury standard is impossibly high. However,

a high standard does make receiving a stay impossible. The “comprehensive

system of review” provided for by the LHWCA, which “includ[es] the opportunity

to petition for a stay” protects a payor’s due process rights. Abbott, 889 F.2d at

632.

III.

We therefore conclude that the Supplemental Default Order is “in

accordance with law” and that summary judgment was appropriate. The

dismissal of the Third-Party Claims was proper, and LIGA’s argument that its

due process rights are being violated is without merit.

The judgment of the district court is AFFIRMED and the stay is LIFTED.