LELAND CORMIER, PLAINTIFF-APPELLEE,
v.
OCEANIC CONTRACTORS, INC. AND INSURANCE COMPANY OF NORTH AMERICA (A/K/A INA CORPORATION), DEFENDANTS-APPELLANTS
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The court held that the employer's argument attacking the continued vitality of controlling precedent was foreclosed by prior Fifth Circuit decisions and that the workers' compensation credit argument was waived.
An employer appealed an award of damages for injuries sustained by a welder employed in Dubai. The trial court found the welder was not a Jones Act se…
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warranty of seaworthiness under this court’s decision in Aparicio v. Swan Lake, 643 F. 2d 1109 (5th Cir.1981).
The employer’s argument here is primarily an attack upon the continued vitality of this court’s decision in Aparicio. It also urges a failure of the trial court to credit certain workers’ compensation benefits to the judgment. Bound by that decision and finding no merit to its claimed credit to the judgment we affirm.
In Aparicio, we held that the 1972 Amendment to the Longshoremen’s and Harbor Workers’ Compensation Act, 86 Stat. 1251, 1263, 33 U.S.C. § 901 et seq., § 905, did not deny the warranty of seaworthiness to workers not covered by the LHWCA. Here the employee, although a harborworker, was not under the reach of the LHWCA because he worked in a foreign country. The Aparicio panel in dictum anticipated this case, referring to such situations as “pockets of Sieracki seamen remaining after the 1972 amendments.” Id. 643 F. 2d at 1118 n. 17. The employer points to Normile v. Maritime Co. of Philippines, 643 F. 2d 1380 (9th Cir.1981), decided four days after Aparicio, holding that Congress by its 1972 amendments to the LHWCA effectively eliminated the Sieracki warranty. Normile rejected the idea that Congress eliminated the Sieracki warranty of seaworthiness only for persons within the coverage of the LHWCA. As virtually conceded by the employer, Aparicio controls this case. While the attack on Aparicio is not frivolous its premise was considered and rejected in Aparicio and may properly be reconsidered only en banc.
The employer’s argument that it should have been credited with workers’ compensation benefits is flawed. It failed to raise the argument below and any error is not plain. See Harden v. United States, 688 F. 2d 1025, 1032 (5th Cir.1982). Indeed, it did not plead payment as an affirmative defense. See Fed.Rules of Civ.Proc. 8(c).
AFFIRMED.
. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.ct. 872, 90 L.Ed. 1099 (1946).
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Seas Shipping Co., Inc. v. Sieracki, 328 U.S. 85 (U.S. 1946)
- Aparicio v. Swan Lake, 643 F.2d 1109 (5th Cir. 1981)
- Harden v. United States, 688 F.2d 1025 (5th Cir. 1982)
- Normile v. Mar. Co. OF THE Philippines, 643 F.2d 1380 (9th Cir. 1981)