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Do I need workers compensation insurance?


Posted: April 12, 2014  |  By: David Weil, Esq.

I own a construction company that is performing seismic upgrades and electrical work on a fuel dock at a marina in the Bay area.  I have workers compensation insurance for my employees but my insurance broker now tells me that I need insurance to cover employees under the federal Longshore and Harbor Workers Compensation Act.  Do I really need that coverage or is he just trying to sell me more insurance?
The Longshore and Harbor Workers Compensation Act (33 U.S. Code §18) is a form of federal workers’ compensation for non-seafaring maritime workers. Section 4(a) of the Act requires that employers secure LHWCA benefits by way of proper insurance for qualified employees.  In order to be qualified under the Act, employees must satisfy two jurisdictional prongs: “situs” and “status.”            

First, the location (situs) must be on or adjacent to navigable waters.  Our reader did not tell us the exact location of the marina but the waters of San Francisco Bay and the Delta are all navigable waters for the purpose of federal maritime jurisdiction so the “situs” prong of the test appears to be satisfied.  If the fuel dock is located on a fresh water lake it would be treated more like a land-based gas station, and LHWCA coverage would not be required.           

The second prong (status) requires that the workers be non-seafaring maritime employees. This means that they are not assigned to a particular vessel but the work being performed must nonetheless have a sufficiently close connection to maritime commerce.  Longshoremen provide the most obvious example of this type of work, and the U.S. Supreme Court has held that a worker who participates in an integral or essential part of the load and unload operation for a ship is a maritime employee.  Similarly, mechanics who maintain cranes, terminal workers loading cargo from ships to trucks, and cargo checkers are all covered under the LHWCA.  A court even held in one case that workers who were injured while doing housekeeping and janitorial work were covered by the Act because they were maintaining equipment that was essential to the loading/unloading process.           

We should also note that “maritime commerce” is not limited to big ships, and the U.S. Supreme Court has held on numerous occasions that recreational boating is subject to federal maritime jurisdiction because it has a sufficient connection to, and effect upon, maritime commerce.           

From these examples, we can conclude that the seismic upgrades and electrical work performed by our reader’s construction company will likely subject his employees to LHWCA coverage.  Even if it were a close call, he should understand that the system tends to favor the interests of the injured worker.           

Our reader also needs to understand that failure to have proper insurance when required can result in criminal charges in which corporate officers can be personally liable for the compensation owed.  And that compensation may be substantial.  Injured employees subject to LHWCA coverage may file a tort lawsuit in federal court, and the defenses available to the employer are much limited than what may be available to them in a conventional workers compensation claim.           

Because of the potential consequences for failing to procure coverage when required to do so, employers should err on the side of caution and obtain the coverage if their employees will be working near or on navigable water. 

David Weil is licensed to practice law in the state of California and, as such, some of the information provided in this column may not be applicable in a jurisdiction outside of California. Please note also that no two legal situations are alike, and it is impossible to provide accurate legal advice without knowing all the facts of a particular situation. Therefore, the information provided in this column should not be regarded as individual legal advice, and readers should not act upon this information without seeking the opinion of an attorney in their home state. 

David Weil is the managing attorney at Weil & Associates (weilmaritime.com) in Long Beach. He is an adjunct professor of Admiralty Law at Loyola University Law School, is a member of the Maritime Law Association of the United States and is former legal counsel to the California Yacht Brokers Association. He is also one of a small group of attorneys to be certified as an Admiralty and Maritime Law Specialist by the State Bar of California. If you have a maritime law question for Weil, he can be contacted at (562) 438-8149 or at dweil@weilmaritime.com. 

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David Weil is licensed to practice law in the state of California and, as such, some of the information provided in this column may not be applicable in a jurisdiction outside of California. Please note also that no two legal situations are alike, and it is impossible to provide accurate legal advice without knowing all the facts of a particular situation. Therefore, the information provided in this column should not be regarded as individual legal advice, and readers should not act upon this information without seeking the opinion of an attorney in their home state.
David Weil is the managing attorney at Weil & Associates (www.weilmaritime.com) in Long Beach. He is an adjunct professor of Admiralty Law at Loyola University Law School, is a member of the Maritime Law Association of the United States and is former legal counsel to the California Yacht Brokers Association. He is also one of a small group of attorneys to be certified as an Admiralty and Maritime Law Specialist by the State Bar of California. If you have a maritime law question for Weil, he can be contacted at (562) 438-8149 or at dweil@weilmaritime.com.

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