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Ambrosino v. Transoceanic Steamship Co.

decided: March 19, 1982.


Appeal by longshoreman Ambrosino from a judgment of the United States District Court for the Southern District of New York, Robert W. Sweet, J., dismissing his complaint and by longshoreman Cigliano from a judgment of that same court, Richard T. Owen, J., granting defendant's motion for summary judgment in actions seeking damages from shipowners for personal injuries as barred by the six-month limitation period prescribed by the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 933(b). Affirmed.

Before Feinberg, Chief Judge, and Kaufman and Mansfield, Circuit Judges.

Author: Per Curiam

These two appeals are by longshoremen injured aboard ship during the course of their employment; they seek damages from the shipowners under the Longshoremen's and Harbor Workers' Act, 33 U.S.C. § 901 et seq., for their personal injuries. The sole issue presented to us is whether the September 9, 1977 amendments to the Code of Federal Regulations, 20 C.F.R. §§ 702.312 and .315, mandate a result in these cases different from the one we reached in Rodriguez v. Compass Shipping Co. Ltd., 617 F.2d 955 (2nd Cir. 1980), aff'd, 451 U.S. 596, 101 S. Ct. 1945, 68 L. Ed. 2d 472 (1981). We find that our analysis in Rodriguez is dispositive of the two appeals now before us, and we affirm the judgments of the district courts.

The undisputed facts are that each plaintiff accepted from his employer, the stevedore, compensation for his permanent disability following an informal conference convened by a United States Department of Labor claims examiner in the Office of Workers' Compensation Programs (OWCP). In each case, the Department issued a Memorandum of Informal Conference, but no formal compensation order was entered and no party requested such an order. Both plaintiffs brought suit in district court more than six months after they accepted payment from their employer.*fn1 In the Ambrosino case, the complaint was dismissed after defendant's answer and oral motion to dismiss; in the Cigliano case, defendant's motion for summary judgment was granted. In both cases, the district court relied on our decision in Rodriguez, supra, and disposed of the claim on the same ground: The longshoreman's failure to bring suit within six months after acceptance of a compensation award resulted in an assignment of his cause of action to his employer, who thereafter had the exclusive right to pursue the third-party claim against the shipowner, 33 U.S.C. § 933(b).*fn2

Plaintiffs argue that Rodriguez is not dispositive because the regulations at the time Rodriguez was decided were later changed in two respects. First, plaintiff points out that formerly any OWCP employee empowered to convene an informal conference could issue a compensation order and that therefore a settlement agreement signed by an OWCP claims examiner could properly be construed as an "award in a compensation order" within the meaning of § 33(b), as Rodriguez held. Plaintiffs argue that in contrast 20 C.F.R. § 702.312, which is quoted in the margin*fn3 and is applicable to the two cases before us,*fn4 now provides that "a compensation order following an agreement shall be issued only by a person so designated by the Director to perform such duty." Plaintiffs contend that the claims examiners in these two cases were not so designated and that therefore we cannot construe the Memorandum of Informal Conference as having the effect of an "award in a compensation order." Second, plaintiffs argue that under the amended regulation 20 C.F.R. § 702.315, also reproduced in the margin,*fn5 if an employer wishes an assignment of the cause of action it must request that "a formal compensation order" be issued.*fn6 No such request was made here.

Although the effect of the amendments to the regulations was specifically left open in Rodriguez, 617 F.2d at 959 n.1 and 960 n.2, and also was not reached by the Supreme Court in affirming our decision in that case, 451 U.S. 596, 598-99 n.3, 101 S. Ct. 1945, 1948 n.3, 68 L. Ed. 2d 472, we believe that plaintiffs' arguments are not persuasive. We find nothing in the 1977 amendments that would change the result we reached in Rodriguez. The intent of the Department of Labor in amending the regulations was clearly stated:

The amendments will enable the Department of Labor to process in a more efficient and timely manner the increasing number of claims filed each year.

42 Fed.Reg. 45300, September 9, 1977. Additional language used by the agency in discussing comments received on the proposed amendments reflected a primary concern to avoid "unnecessary delays in the processing of claims." Id. Plaintiffs provide no basis, and we can find none, that would lead us to conclude that the agency intended in any way to affect the substantive rights of the parties, or to inject additional technicalities into the settlement process. To the contrary, the Department encourages resolution through "informal procedures" in the "vast majority of cases." 20 C.F.R. § 702.301. The amendments recognize the importance of an official informal conference in which an agreement approved by the Department of Labor has the same final and binding effect as a formal compensation order issued after a contested proceeding. Thus, 20 C.F.R. § 702.315, see note 5 supra, provides:

(W)hen the employer or carrier has agreed to pay, ... such action shall be commenced immediately upon becoming aware of the agreement, and without awaiting receipt of the memorandum or the formal compensation order.

(Emphasis supplied.) See also Verderame v. Torm Lines, 670 F.2d 5, 7 (2nd Cir. 1982).

Accordingly, we find that under the revised regulations an agreement approved in a Memorandum of Informal Conference by the claims examiner after an official informal conference constitutes an "award in a compensation order" under § 933(b).*fn7

The judgments of the district courts ...

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