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Cruz v. National Steel and Shipbuilding Co

United States Court of Appeals, Ninth Circuit

December 19, 2018

Sira Cruz, Plaintiff-Appellant,
v.
National Steel and Shipbuilding Company; Peterson Industrial Scaffolding, Inc., Defendants-Appellees, and United States of America, Defendant.

          Submitted August 29, 2018 [*] Pasadena, California

          Appeal from the United States District Court for the Southern District of California, No. 3:14-cv-02956-LAB-DHB Larry A. Burns, District Judge, Presiding

          Preston Easley, Law Offices of Preston Easley, San Pedro, California; Dawn Schock, SK Appellate Group LLP, San Pedro, California; for Plaintiff-Appellant.

          Bradley H. Pace, Philip Barilovits, and Pamela L. Schultz, Hinshaw & Culbertson LLP, San Francisco, California, for Defendant-Appellee.

          Before: Kim McLane Wardlaw, Jay S. Bybee, and Sandra S. Ikuta, Circuit Judges.

         SUMMARY [**]

         Admiralty

         The panel affirmed the district court's summary judgment in favor of the defendant in an admiralty action brought by an injured maritime worker.

         The plaintiff was injured while working as a tank tester aboard a Navy ship that was docked for repairs. She collected workers' compensation under the Longshore and Harbor Workers' Compensation Act from her primary employer, a staffing agency, and she brought a negligence action against the general contractor that had functioned as her borrowing employer.

         The panel held that the defendant general contractor was immune from suit pursuant to the "one recovery" policy at the heart of workers' compensation law. Joining other circuits, the panel held that the "borrowed employee" doctrine applies to "employees" under the Longshore Act. The worker was the defendant's borrowed employee because her work was subject to its direction and control at all times. She therefore was barred from bringing tort claims against the defendant.

          OPINION

          BYBEE, CIRCUIT JUDGE:

         In this case we are asked to determine whether a maritime worker who has collected statutory workers' compensation for her injuries may further recover against a so-called "borrowing employer." Sira Cruz suffered injuries to her ribs and lungs while working as a tank tester aboard a Navy ship that was docked for repairs. She collected workers' compensation from her primary employer, a staffing agency. Then, she brought a negligence action against general contractor National Steel and Shipbuilding Company ("Nassco") seeking recovery for the same injuries. Nassco, which had functioned as Cruz's borrowing employer for several years at the time of the accident, asserted that it was immune from suit pursuant to the "one recovery" policy at the heart of workers' compensation law. The district court granted Nassco's motion for summary judgment on these grounds. Cruz appeals from that judgment, and we affirm. In this, we join the Third, Fourth, Fifth, and Eleventh Circuits in holding that the borrowed employee doctrine applies to "employees" under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. §§ 901-50.

         I

         Except where noted, Cruz and Nassco have stipulated to ...


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