United States Court of Appeals Fifth Circuit 

## FILED January 10, 2007 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-41872

MARIA GENOVEVA ANAYA, MARIO ANAYA, EDUARDO ANAYA, JESSICA ANAYA, AYDHEE ANAYA, Pl aint iffs-Appellants,

versus TRAYLOR BROTHERS, INC., Defendant-Appellee.

Appeal from the United States District Court fo r the Southern District of Texas

Before REAVLEY, STEWART, and CLEMENT, Circuit Judges. CARL E. STEWART, Circuit Judge: Humberto Anaya, an employee of Traylor Bros., Inc. (“Traylor”), suffered fatal injuries on
a barge while constructing a bridge. Soon thereafter, Traylo r’s insurer began paying compensation benefit s to hi s beneficiaries (the “Anayas”). Approximately two months later, the Anayas filed suit against Traylo r fo r exemplary damages. The di strict court granted Traylo r’s motion for summary judgment. The court concluded that Traylo r’s insurer paid the compensation benefits under the Longshorem

en and Harbor Workers’ Compensation Act (the “LHWCA”), which precludes the recovery of exemplary damages. In this appeal, the Anayas argue that Traylor’s insurer was actually2

paying benefit s pursuant to the Texas Wo rkers’ Com pensation Act (the “TWCA”). We affirm the district court’s judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND Humberto Anaya worked fo r Traylo r as a carpenter on the Texas Department of Transportation Galveston Causeway proj ect. At the time o f his fat al accident, Anaya was constructing a bridge th at c onnected Interstate 45 f rom Galveston Island to the mainland. On October 15, 2004, while Anaya drilled bolt holes, a form collapsed and crushed him underneath a concrete beam. Anaya died the same day. On October 18, 2004, the Anayas submitted an application to the Texas Wo rkers’ Compensation Commission (the “Commission”) fo r survivor benefit s. The Anayas subsequently received a series of benefit checks from Traylor’s insurer. On November 16, 2004, the Anayas’ attorney sent a notice of representation to t he insurer. In response, Traylor’s insurer info rm

ed the Anayas th at the benefits were paid pursuant to the Longshoremen and Harbor Wo rkers’ Compensation Act, not the Texas Workers’ Compensation Act. O n December 27, 2004, the Anayas filed a request to receive TWCA benefit s. Two days lat er, the Anayas filed suit against Traylo r fo r exemplary damages based on Traylo r’s alleged gross negligence. In February 2005, Traylor’s insurer filed a dispute with the Commission to est ablish whether the Anayas were entitled to benefit s under the state or federal com pensation scheme. On August 25, 2005, the Com missio n fo und in favor of the insurer, rul ing th at the Anayas did not qualify fo r TWCA benefit s. Traylo r then moved for summary judgment in the ongoing litigation because the LHWCA bars gross negligence claims fo r exemplary damages. The district court granted summary judgment to Traylo r, reasoning th at the LHWCA applied due to Anaya’s work on navigable waters. II. STANDARD OF REVIEW3

This court reviews de novo a district court’s grant of summary judgment, applying the same legal standards as the district court. Machinchick v. P.B. Power, Inc. , 398 F.3d 345, 349 (5th Cir. 2005). If no genuine issue of material fact exists, then the moving party is entitled to judgment as a mat ter of law. FE D . R. C IV . P. 56(c); Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). The court

mus t v iew all evidence in the light most favorable to the non-movant. B roussard v. Parish of Orleans , 318 F.3d 644, 650 (5th Cir. 2003). If the evidence would permit a reasonable trier of fact to find fo r the non-moving party , then summary judgment should not be granted. A nderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986). III. DISCUSSION A. Under the TWCA, an injured worker’s beneficiaries may file suit fo r exemplary damages, T EX . LAB . C ODE ANN . § 408.001(b), but the LHWCA prohibits the recovery of exemplary damages, 33 U.S.C. §§ 904, 905(a). To receive benefit s under the LHWCA, a worker m ust sati sfy bo th a situs and status test. Munguia v. Chevron U.S.A ., Inc. , 999 F.2d 808, 810 (5th Cir. 1993). The situs test

concerns geographic areas covered by the LWHCA, whereas the status test concerns an employee’s ty pe of work activities. P.C. Pfeiffer Co. v. Ford , 444 U.S. 69, 78 (1979). The situs test includes injuries “o cc u rring upon the navigable waters of the Unit ed States (including any adjoining pier, wharf, dry dock, term

inal, building way, marine railway, or other adjoining area customarily used by

an employer in lo ading, unloading, repairing, dismant ling, or building a vessel).” Bienvenu v. Texaco, Inc. , 164 F.3d 901, 904 (5th Ci r. 1999) (citing 33 U.S.C. § 903(a)). The status test defines an employ ee as “any person engaged in maritime employment, including any longshoreman or other4

person engaged in lo ngshoring operations, and any harborworker including a ship repairman, shipbuilder, and ship-breaker.” Id . (quoting 33 U.S.C. § 902(3)). In addition, a worker injured in the course of his employment on navigable waters is engaged in marit ime employment and meets the status test only if his presence on the water at the time of injury was neit her transient or fo rtuitous. The presence, however, of a worker injured on the water and who performs a “not insubstantial” amount of his work on navigable waters is neither transient nor fortuitous. Bienvenu , 164 F.3d at 908 (footnote om it ted). At the time of his accident, Anaya was undoubtedly lo cated on navigable waters, which sati sfies the sit us test. In this appeal, the status test determines whether the LHWCA applies to the Anayas req uest for benef it s. Neither this Circuit nor the Supreme Court provide a definitive explanation of what constitutes a transient and fo rtuitous presence on navigable water. I d. ; see also Director v. Perini N. River Assocs ., 459 U.S. 297, 324 n.34 (1983). In B ienvenu , the Fift h Circuit sit ting en banc contrasted the holdings of Fontenot v. AWI, Inc. , 923 F.2d 1127 (5th Cir. 1991), and Randall v. Chevron U.S.A., Inc. , 13 F.3d 888 (5th Cir. 1994), as modified by 22 F.3d 568. The en banc court affirmed Fontenot , which held th at “a worker who spent 40% of his worktime on shore, 30% on fixed platforms and 30% on oil exploration and production vessels was engaged in marit ime employment because he was injured while o n actual navigable waters, in the course of his employment .” B ienvenu , 164 F.3d at 908-09 (citing Fontenot , 923 F.2d at 1130). Yet, the court overruled Randall , which held th at the LHWCA covered a mechanic performing all of his work duties on navigable waters because “[h]e was simply transported to and from his workstation-a stationary platform-by boat.” Id. Unlike the worker in Randall , and mo re similar to the analysis in Fontenot , Anaya spent the majo rity of his time working on navigable waters. Anaya performed his construction dut ies on a5

barge lo cated on navigable waters, and a boat carried Anaya between the shore and his work sit e. The district court fo und th at Anaya regularly worked on the barge and his October 15 work assignment

was not an aberration from his normal work tasks. Therefore, the LHWCA covers the Anayas’ claim fo r benefits. B. Section 406.091(a)(2) of the TWCA prohibits benefit s to worke rs covered by analogous federal laws. The TWCA reads in pertinent part that “a person covered by a method of compensation established under federal law” is not subject to the statute. T EX . LAB . C ODE ANN . § 406.091(a)(2). The Anayas argue th at a twilight zone of concurrent jurisdiction, established by the Supreme Court’s holdings in Davis v. Dep’t of Labor , 317 U.S. 249 (1942), and Sun Ship, Inc. v. Pennsylvania , 447 U.S. 715 (1980), perm

it s workers to elect benefits under either the TWCA or LHWCA. And pursuant to this allo wance, they elected to receive benefits under the TWCA, thus preserving their right to file suit fo r exemplary damages. The Commission held that Anaya “is not entitled to all rights and remedies under” the TWCA and is limit ed to recovery under the LHWCA. We agree with the Com missio n’s analysis and interpretation of the federal and state com pensation schemes as applied in t his inst ance, and therefore, reject the Anayas’ argument that Anaya was in a twilight zone. See Hahn v. Ross Island Sand & G ravel Co. , 358 U.S. 272, 273 (1959) (per curiam) (“[T]he employee could not [elect a rem edy] if t he case were not within the ‘twilight zone,’ for then the Longshoreman’s Act would provide the exclusive remedy.”). An emplo yee subject to Anaya’s work conditions on navigable waters may o nly recover under the LHWCA. Accordingly, an election of benefit s was not available for the Anayas. IV. CONCLUSION6

Based on Bienvenu and the explicit lan guage of the TWCA, we affirm the district court’s grant of summary judgment to Traylor.