Recent Significant Decisions Related to Longshore Cases

Dyer v. Cenex Harvest States Coop., 563 F.3d 1044 (9th Cir. 2009)

Reversing the Board's decision, the Ninth Circuit holds that a successful claimant was entitled to recover reasonable attorney fees under Section 28(a) of the LHWCA for work performed both before and after the workers' compensation insurer or employer declined to pay compensation; thus, a successful claimant was entitled to both pre- and post-controversion attorney fees.

The following four conditions must be satisfied in order to receive attorney fees under § 28(a) of the LHWCA: (1) the worker must file a claim with the District Director, (2) the employer must receive notice of the claim from the District Director, (3) the employer must decline to pay compensation or not respond within 30 days, and (4) the worker must thereafter utilize the services of an attorney to prosecute his claim

Coastal Prod. Servs., Inc. v. Hudson, __ F.3d __, 2009 WL 1270457 (5th Cir. 2009)(en banc).

In a split decision, the Fifth Circuit denied a petition for rehearing and rehearing en banc of its earlier decision in Coastal Prod. Servs. v. Hudson, which held that the requirements of situs and status under the LHWCA were satisfied where a platform operator was injured on a fixed production platform located in state waters. There, the Court had held that although the fixed platform also served the arguably non-maritime purpose of production, the platform was part of the "general area" used as part of the "overall loading process" adjoining navigable waters, and was therefore a maritime situs.

Friede-Goldman Halter Inc. v. Escareno, No. 08-60064, 2009 WL 1180896 (5th Cir. 2009)(Unreported).

The Court affirmed the Board's award of benefits, attorney's fees and interest under the LHWCA against Texas Property Casualty Insurance Guaranty Association (TPCIGA). TPCIGA is a state-created association which pays claims for insolvent insurers.