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Kehoe v. Tri-Star Marine8/20/2001
Frank Kehoe was injured while painting a fishing vessel in dry dock. The issue is whether the Longshore and Harbor Workers' Compensation Act (LHWCA) provides the exclusive remedy for Kehoe's injuries. Kehoe was a sole proprietor who was working as an independent contractor. He therefore had no employer. He was not a subcontractor's employee for whom Tri-Star Marine, Inc. (Tri-Star), the owner of the marina, was compelled to provide coverage when his subcontractor employer failed to do so. Therefore, Tri-Star was not "deemed" to be Kehoe's employer for LHWCA purposes. Since only employers are immune from suit under the Act, Kehoe was entitled to bring a lawsuit for damages against Tri-Star. The trial court's decision dismissing the lawsuit is reversed.
FACTS
Tri-Star owns a marina in Seattle. A fishing vessel named the "Icy Bay" was in the marina's dry dock in June 1998 to be painted. Tri-Star contacted Frank Kehoe, a sole proprietor, to paint a portion of the Icy Bay. Kehoe agreed to do the painting. It is not disputed between the parties that he was acting as an independent contractor during the course of the work.
Tri-Star set up 14-foot tall rolling scaffolding at the rear of the Icy Bay. As Kehoe began a descent from the top of the scaffolding, he claims he grabbed onto a "pad eye," a piece of metal attached to the top of the top rail, which broke off in his hand. Kehoe fell from the scaffolding, suffering an injury to his tailbone and spine.
At the time of the accident, Tri-Star was the named insured on a maritime workers' compensation insurance policy with Liberty Northwest Companies. The policy included coverage for work performed subject to the Longshore and Harbor Workers' Compensation Act (LHWCA). Kehoe, by contrast, had purchased neither state Labor and Industries insurance nor Harbor Workers' Compensation insurance for himself.
In April 1999, Kehoe brought a lawsuit against Tri-Star for damages, alleging that Tri-Star had been negligent in supplying dangerous scaffolding. Tri-Star brought a motion for summary judgment to dismiss Kehoe's claim on the grounds that Kehoe's exclusive remedy is under the LHWCA. The trial court granted the motion for summary judgment. Kehoe appeals.
ANALYSIS
Kehoe argues that the trial court erred in dismissing his lawsuit on summary judgment. Appellate review of a summary judgment dismissal is de novo. E.g., Ellwein v. Hartford Accident and Indemnity Co., 142 Wn.2d 766, 15 P.2d 640 (2001). Under that standard, we must determine whether, after reviewing all relevant pleadings and affidavits in favor of the nonmoving party, any genuine issue of material fact exists that prevents the moving party from being entitled to judgment as a matter of law. CR 56(c); Ellwein, 142 Wn.2d 766.
Kehoe argues that the court was in error to conclude that the LHWCA provided the exclusive remedy for his injuries. Kehoe relies on section 904 of the Act. That section provides that "employer{s}" are liable for securing payment to their employees of LHWCA workers' compensation:
(a) Every employer shall be liable for and shall secure the payment to his employees of the compensation payable under sections 907, 908, and 909 of this title. In the case of an employer who is a subcontractor, only if such subcontractor fails to secure the payment of compensation shall the contractor be liable for and be required to secure the payment of compensation. A subcontractor shall not be deemed to have failed to secure the payment of compensation if the contractor has provided insurance for such compensation for the benefit of the subcontractor.
(b) Compensation shall be p
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