Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

COUCH v. CRO-MARINE TRANSPORT

November 27, 1989

RAY COUCH, III, PLAINTIFF,
v.
CRO-MARINE TRANSPORT, INC., A FOREIGN CORPORATION; AND BERISFORD METALS CORPORATION, D/B/A ERLANGER & CO., A FOREIGN CORPORATION; AND FLANAGAN-NEW ORLEANS STEVEDORING CO., A FOREIGN CORPORATION, DEFENDANTS. BERISFORD METALS CORPORATION, D/B/A ERLANGER & CO., THIRD PARTY PLAINTIFF, V. CENTRAL ILLINOIS DOCK COMPANY, THIRD PARTY DEFENDANT.



The opinion of the court was delivered by: Mihm, District Judge.

ORDER

Pending before the Court is Third Party Defendant Central Illinois Dock Company's Motion to Dismiss the Third Party Complaint. For the reasons stated herein that Motion is DENIED.

BACKGROUND

Plaintiff Ray Couch III was an employee of the Third Party Defendant Central Illinois Dock Company (hereinafter "CIDC"). CIDC is engaged in the business of loading and unloading cargo from barges on the Illinois River, a process known as stevedoring. On December 14, 1987, various employees from CIDC were unloading steel, which Defendant/Counterplaintiff Berisford Metals Corp., d/b/a Erlanger & Co. (hereinafter "Erlanger") had shipped to Tazewell County on a barge owned by Defendant Cro-Marine Transport, Inc. (hereinafter "Cro-Marine"). Plaintiff was removing cargo from the hold of one of the barges. The crew with whom he worked consisted of supervisors and co-workers inside the barge and a crane operator who was operating a crane located on the dock. Part of the cargo which was being moved by the crane shifted and fell on Plaintiff's leg, causing the injury which is the basis of his complaint against Cro-Marine and Erlanger.

Defendant/Counterplaintiff Erlanger is the owner of the cargo which was being unloaded from the barge. Erlanger had contracted with CIDC to provide services and equipment for unloading the cargo from the barges and storing it until some later date. The cargo of steel which was being unloaded in Tazewell County at the time of the accident had been loaded onto the barge in New Orleans after arriving in the United States from some foreign port (apparently Brazil). Erlanger had not arranged for stevedoring in New Orleans. Instead, the stevedoring in New Orleans was performed by Defendant Flanagan-New Orleans Stevedoring Company.

The Plaintiff subsequently filed for benefits under the Illinois Workers Compensation Act, Ill.Rev.Stat., ch. 48, § 138.1 et seq. and has not pursued any remedy that he might have against his employer under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. (hereinafter "LHWCA"). In addition, Plaintiff has brought this three count lawsuit. In Count I, Plaintiff alleges negligence against Cro-Marine, the owner of the barge, seeking compensation ($1,000,000) for his injuries. Count II seeks compensation from Erlanger, the cargo owner, alleging negligence. Count III seeks compensation for his injuries from Flanagan-New Orleans Stevedoring Co.

Erlanger has denied all allegations of negligence. However, in the event that this Court might find negligence, Erlanger has also filed a Third Party Complaint against Couch's employer, CIDC, in three counts. Count I sounds in contribution based on the alleged negligence of CIDC and seeks a pro rata allocation of any liability based upon relative degree of fault. Count II seeks common law indemnification based upon active/passive indemnity theories. Count III seeks liability based upon indemnification ex contractu.

The Motions to Dismiss raise four legal issues. First, the Court must determine whether there is a substantive right (federal or state) to contribution or indemnification where the party from whom such contribution is sought is the employer of the injured person.

The second question which arises is whether § 905(a) of the LHWCA should be read as barring such suits; if so, the Illinois Workers Compensation Act is inconsistent with the LHWCA and therefore preempted by it.

Finally, Count III alleges an implied contract from which employer liability to the cargo owner can be inferred. Two questions arise in this context: first, does § 905(a) act as a bar to an action for indemnification in the face of such a contract? Second, has such a cause of action been displaced by § 905(b)?

DISCUSSION

Count I: Contribution

At dispute is 33 U.S.C. § 905(a), a provision of the Longshore and Harbor Workers Compensation Act. Section 905(a), entitled Exclusiveness of Liability, provides in pertinent part:

  (a) Employer Liability. The liability of an
  employer prescribed in § 904 of this title shall be
  exclusive and in place of all other liability of
  such employer to the employee, his legal
  representative, husband or wife, parents,
  dependents, next of kin, and anyone otherwise
  entitled to recover damages from such employer at
  law or in admiralty on account of such injury or
  death. . . . (Emphasis added).

In essence, CIDC argues that tortfeasors may not circumvent the exclusive remedy provision of ยง 905(a) by obtaining contribution from the employer. Erlanger contends that the cases cited by CIDC in support of that proposition are factually distinguishable, and further that some lower ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.