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Terminating Social Worker Following the Filing of Her Comp Claim Not Retaliatory Where She Could Not Lift More Than 10 Pounds and Transporting and Lifting Children Was Requirement of Her Work.  White v. Connecticut Department of Children and Families, 2009 U.S. App. LEXIS 10327 (2nd Cir. May 15, 2009).  Plaintiff filed a multi-count complaint against defendant alleging, in relevant part, racial discrimination, violations of the Connecticut Fair Practices Act, and that defendant had retaliated against her for her filing of a workers' compensation claim.  The district court granted defendant's motion for summary judgment on all counts.  With regard to the retaliatory discharge claim, the Second Circuit affirmed.  Assuming that plaintiff had made a prima facie case of retaliatory discharge, based on the timing of the claim and the dismissal, the court agreed with the district court that the defendant had met its burden of showing that the termination was not pretextual.  Plaintiff failed to demonstrate that she was qualified for the position of social worker, in light of the fact that she could no longer lift anything over ten pounds, and that physical transportation of children--many of whom were over ten pounds--was an essential function of being a social worker. See generally Larson’s Workers’ Compensation Law § 104.07.

Federal Inmate's Federal Tort Claim Act for Asbestos Exposure Fails.  Smith brought claims under the Federal Tort Claims Act and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) against the U.S. government and various prison officials, alleging that he was exposed to asbestos in 2003 while an inmate at the federal prison at Leavenworth. Smith alleged that during his incarceration, he worked as an electrician for the prison's Custodial Maintenance Services and in the course of that work received a work order to install a new light fixture in a closet in the prison's education department.  According to Smith, the closet lacked any ventilation.  Smith alleged in relevant part that while he was installing the light fixture, another inmate, who had been instructed to clean the closet, entered the confined space and on two occasions pulled insulation from the pipes, creating clouds of irritating dust.  Smith alleged that during the incident his throat and lungs were irritated by the dust, that ten years prior to the dust incident an engineering survey established the presence of asbestos in the insulation in that portion of the prison, that various prison officials knew of the dangerous environmental conditions within the closet, and that as a result of exposure to the asbestos dust, Smith suffered from a cough, shortness of breath, difficulty with his throat and eyes, and that he had also suffered emotional distress.  The federal district court dismissed Smith's multiple claims and he appealed.

Can Smith recover?

In Smith v. United States, 2009 U.S. App. LEXIS 6949 (10th Cir., March 31, 2009), the federal district court held that Smith's claim under the Federal Tort Claims Act ("the federal tort claim") could be advanced only against the federal government and not the individual defendants, that the federal tort claim was barred by the exclusive remedy provisions of the Inmate Accident Compensation Act ("IACA"), 18 U.S.C. § 4126, which provides specified compensation for a federal inmate who suffers a work-related injury or improper medical treatment of a work-related injury, and that Smith's Bivens claim could be brought only against federal officials in their individual capacities; it could not be asserted directly against the United States.  Practitioners should recall that IACA, and the regulations promulgated thereunder, provides two types of "workers compensation" for a qualifying federal inmate:

• The first type of compensation is available only when the inmate is ready to be released from prison and reenter the workforce [28 C.F.R. §§ 301.101(a), 301.301-.319].  If the inmate still suffers a residual physical impairment as a result of the work-related injury, then within forty-five days of his or her release date, he or she can submit a claim for compensation [§ 301.303(a)]. If, however, the inmate has fully recovered from the injuries while incarcerated, he or she is not entitled to any compensation [§ 301.314(a)]. 
• The second type of compensation is for wages the inmate actually loses while he or she is prevented from doing his or her work assignment due to the injury [§§ 301.101(b), 301.201-.205].

In the instant case, Smith argued that the IACA should not be the exclusive remedy against the government for a prisoner like himself, who had a very long sentence, that IACA likely would afford him little, if any, relief because he might die before he was within forty-five days of his release date.  The circuit court noted that the issue had arisen before and indicated it was up to Congress to make any changes that were required; the court could not legislate.  See generally Larson’s Workers’ Compensation Law § 100.03[3].

Employer's Zero-Tolerance Policy for Major Preventable Accidents Trumps Driver's Retaliatory Discharge Claim.  A 60-year-old truck driver was injured when two worn straps used to secure the heavy load on his truck snapped.  The resulting shift of cargo caused extensive damage to the truck as well.  The driver was fired shortly after filing his application for workers’ compensation benefits.  He then filed suit against the employer in federal court, alleging that the employer had discriminated against him on the basis of age, disability, and his application for workers’ compensation benefits, all in violation of California’s Fair Employment and Housing Act (FEHA).  He also asserted that his employment was terminated in violation of public policy, and that the employer breached the implied covenant of good faith and fair dealing and intentionally or negligently caused him to suffer emotional distress.  The employer contended the driver had been fired on the basis of the employer’s “zero tolerance” policy for major preventable accidents.

In Copeland v. Ryder Servs. Corp., 2009 U.S. App. LEXIS 5607 (9th Cir., March 18, 2009),  the U.S. Court of Appeals for the Ninth Circuit affirmed an order of a California district court granting summary judgment to the employer.  The driver's evidence that he suffered from disabling injuries, was 60 years old, was called "the old guy" by his coworkers, and heard a stray remark about retirement during the accident review board hearing only minimally pointed to discrimination.  The statements regarding the driver's workers' compensation claim were isolated comments unrelated to the employer's decision to terminate the driver's employment. Weighing against the driver's evidence was an earlier accident after which the driver had been warned about the importance of securing his cargo, the employer's consistent application of its zero tolerance policy for major preventable accidents, and the reasonable conclusions by the safety manager and the accident review board that the billets on the trucker's vehicle were not adequately secured.  All in all, the court held there was insufficient evidence from which a fact finder could conclude that the driver's termination was motivated by age or disability discrimination or by his application for workers' compensation.  See generally Larson’s Workers’ Compensation Law § 104.07.

Brown v. Cassens Transp. Co., 2008 App. LEXIS 21990; 2008 FED App. 0385P (6th Cir. October 23, 2008).  Plaintiffs, current or former employees, alleged that defendants, the employer and others, employed mail and wire fraud to deny them compensation benefits under the Michigan Worker's Disability Compensation Act (WDCA), in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), and that defendants' conduct constituted intentional infliction of emotional distress (IIED). The matter was on remand from the U.S. Supreme Court.  Plaintiffs alleged under 18 U.S.C.S. § 1964(c) that the employer, a claims adjuster it hired, and "cut-off" doctors engaged in a pattern of racketeering activity that denied their worker's compensation claims. Previously, a divided panel of the court affirmed the district court's dismissal of plaintiffs' RICO claims because plaintiffs had failed to plead detrimental reliance on alleged misrepresentations of defendants. The Supreme Court vacated the judgment and remanded for further consideration in light of Bridge v. Phoenix Bond & Indemnity Co., ____ U.S. ____, 128 S. Ct. 2131, 170 L. Ed. 2d 1012 (2008), which held unanimously that a civil-RICO plaintiff did not need to show that it detrimentally relied on the defendant's alleged misrepresentations. On remand, the court determined that the WDCA did not preempt plaintiffs' RICO claims, Further, plaintiffs sufficiently pleaded a pattern of racketeering activity given that reliance was not an element of a civil RICO fraud claim. Finally, with regard to the IIED claims, the court determined that the alleged conduct of defendants could not be deemed outrageous under Michigan law. Wrongful, bad faith termination of benefits, by itself, was not sufficiently outrageous to support an IIED claim.  The court reversed the dismissal of plaintiffs' RICO claims and remanded to the district court for further proceedings. The court affirmed the dismissal of the IIED claims because defendants' alleged conduct could not meet Michigan 's standard for outrageous conduct.  See generally Larson’s Workers’ Compensation Law §§ 94.02, 100.03.

Attorneys Fees of $261 Per Hour Found Reasonable in Longshore Case.  Jeffboat, LLC v. Dir., OWCP, 2009 App. LEXIS 408 (7^th Cir. January 13, 2009).  Petitioner employer appealed from a decision of the Benefits Review Board of the United States Department of Labor which upheld the administrative law judge's (ALJ) award of attorneys' fees to respondent employee, who filed a workers' compensation claim under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.S. § 901 et seq., against the employer that was settled shortly before trial was scheduled.  The employer argued that the employee's counsel never established that the hourly rate that she requested was in line with the prevailing market rate for legal services in Indiana , where the employee brought this case. The employer also argued that the ALJ improperly resorted to discretionary factors when he made the award. The employer claimed that such factors were only appropriate once the ALJ had made a proper determination about the applicable market rate. The instant court found that, contrary to the employer's argument, an attorney's actual billing rate for comparable work was presumptively appropriate for use as a market rate when making a lodestar calculation. The instant court also found that the petition for attorneys' fees, while acknowledging that the employee's attorney did not bill by the hour, established a baseline hourly rate of $ 250 to $ 340 per hour, and substantiated this rate with evidence that it was consistent with market rates for specialized legal services in Connecticut . The ALJ did not abuse his discretion by using $ 261 per hour as a reasonable hourly rate for purposes of the lodestar calculation.  The decision was affirmed.  See generally Larson’s Workers’ Compensation Law § 133.03.

Baynes v. United States, 2008 App. LEXIS 21775; 2008 FED App. 0619N (6th Cir. October 15, 2008).  Plaintiff prisoners sought review of a decision of the United States District Court for the Eastern District of Kentucky, which dismissed their federal tort claim lawsuit for personal injuries sustained while the inmates were in a vehicle accident.  The inmates were incarcerated in a minimum security "federal prison camp" in Kentucky and worked at various work sites. The Federal Bureau of Prisons (BOP) provided bus transportation from the prison to the work locations. The inmates were injured in a bus accident while they were being transported to a job site. The inmates filed administrative tort claims with the BOP, which were denied. The BOP advised the inmates to file claims under the Inmate Accident Compensation Act, 18 U.S.C.S. § 4126. The inmates then filed a claim for personal injuries under the Federal Tort Claims Act. The district court agreed with the BOP and found that § 4126 foreclosed the inmates' lawsuits. Although the inmates conceded that they were riding the bus in connection with a work activity, the inmates contended that they suffered non-work-related injuries on the bus ride, pursuant to 28 C.F.R. § 301.102, a "coming and going" rule, because they had yet to arrive at the work area. The court agreed with the Bureau of Prisons and the district court that the inmates' injuries, that occurred while they were on the bus to work, were proximately caused by the actual performance of the inmates' work assignments.  The court affirmed the decision of the district court. See generally Larson’s Workers’ Compensation Law § 15.01, 100.03.

Lane v. Celadon Trucking, Inc., 2008 App. LEXIS 21095 (8th Cir. October 9, 2008). Plaintiff employee sued defendants, a truck driver and the truck owner, in the United States District Court for the Eastern District of Arkansas to recover for injuries suffered in a vehicle accident. The parties reached a settlement, and the employee joined defendant employer in order to resolve a worker's compensation lien. The district court entered judgment for the employer. The employer appealed, and the employee cross-appealed.  The employee was injured in the accident, which took place in Arkansas , and the employer paid worker's compensation benefits. The employer asserted a subrogation lien pursuant to Ind. Code § 22-3-2-13 against the employee's recovery under the settlement. The district court reduced the award to the employer under Indiana 's lien reduction statute, Ind. Code § 34-51-2-19, based on findings that the third-party settlement failed to make the employee whole. The court of appeals held that Indiana law applied to the issues regarding the lien. The only connection with Arkansas in the case was the accident location, and Indiana had a more significant relationship to the lien issues. Section § 34-51-2-19 was erroneously applied, as the employee failed to show that the settlement was diminished by either comparative fault or uncollectability. Because the employee failed to obtain the employer's consent to the settlement as required under Ind. Code § 22-3-2-13, the employer was entitled to recover from the settlement amount the full amount of the worker's compensation benefits the employer had paid, less its share of costs and an attorney's fee.  The district court's decision to apply Indiana law was affirmed; the judgment was otherwise reversed and remanded for entry of an amended judgment.  See generally Larson’s Workers’ Compensation Law § 116.07, 117.01, 143.02.

Ellis v. Trustmark Builders, Inc., 2008 App. LEXIS 21083 (5th Cir. October 6, 2008).  Plaintiff, an Alabama employee, sued defendants, his employer (an Alabama subcontractor), as well as his supervisor and a coworker (both Alabama residents), to recover for injuries he sustained in the course of his employment on a construction project in Mississippi . The U.S. District Court for the Southern District of Mississippi found that Mississippi law applied and granted summary judgment to the employer. The employee appealed.  In finding that Mississippi law applied, the district court focused on Miss. Code Ann. § 71-3-109(3), which addressed the application of the Mississippi Workers' Compensation Law, Miss. Code Ann. § 71-3-1 et seq., to employers and workers (like the employee), who had been hired or were regularly employed outside of Mississippi, while the workers were temporarily in Mississippi working for their employers. The district court interpreted the language of § 71-3-109(3) as creating a freestanding statutory framework to govern choice of law in workers' compensation cases. Applying that framework, the district court determined that Mississippi law applied. Because Mississippi workers' compensation law did not permit recovery in tort, the district court granted summary judgment. However, § 71-3-109(3) did not govern conflict of laws. The district court had to find that Mississippi's choice-of-law rules directed it to apply Mississippi law before considering § 71-3-109(3). But the district court did not consider Mississippi choice-of-law at all. The parties' briefs discussed Mississippi choice of law, but the district court was the better forum for deciding their competing arguments.  The summary judgment was vacated, and the matter was remanded with instructions that the district court consider whether Mississippi or Alabama law applied.  See generally Larson’s Workers’ Compensation Law § 140.01, 140.03, 143.05.

Amerada Hess Corp v. Director, OWCP, 2008 App. LEXIS 20575 (5th Cir., September 30, 2008).  Petitioners, an employer and its insurer, sought review of a decision and order of respondent United States Benefits Review Board (BRB) affirming the decision of an administrative law judge (ALJ) to award total and permanent disability benefits to a worker under the Longshore and Harbor Workers' Compensation Act (LHWCA).  The maritime worker received workers' compensation benefits after suffering a work-related back injury in 1997, taking steroids that led to weight gain and, he contended, four heart attacks. In 2005, the employer reduced his disability payments and refused to pay for additional medical treatments. The worker produced no medical records documenting his alleged heart condition, which the ALJ found was proved by testimony from the worker and his wife. The BRB affirmed the ALJ's finding that the worker was totally and permanently disabled. On review, the court held that, because the presumption of causation set forth in 33 U.S.C.S. § 920(a) of the LHWCA arose only in the context of the worker's exact claim, which did not reference a work-related heart injury, the ALJ and the BRB erred in applying the LHWCA presumption to the alleged heart condition. Additionally, under 33 U.S.C.S. § 902(2) of the LHWCA, the heart condition did not naturally or unavoidably result from the claimed back injury because contradictory evidence suggested it predated the back injury. By failing appeal to the BRB the ALJ's award of attorney fees, the employer waived any issue with respect to attorney fees.  The court vacated the ALJ's award of medical expenses for the worker's heart condition and its finding that the worker was totally and permanently disabled, and remanded for determination of whether the heart condition naturally or unavoidably resulted from treatment he received for his work-related back injury, and for reconsideration of whether the worker was totally and permanently disabled. The court denied review of the attorney fee award.  See generally Larson’s Workers’ Compensation Law § 130.06.

Johnson v. Pomeroy, 2008 App. LEXIS 20414 (10th Cir. September 23, 2008).  Appellants, husband and wife, sued appellees, state employees, under 42 U.S.C.S. § 1983 and alleged that the denial of extended permanent total disability benefits to the husband based on the wife's income infringed upon their constitutional rights to associate with one's family and to marry. The United States District Court for the District of Wyoming held that there was no violation of their constitutional rights. The husband and wife appealed.  The question on appeal was whether the denial of extended workers' compensation disability benefits to the husband based on his wife's income impermissibly interfered with the exercise of their constitutional rights to associate with one's family and to marry. The court found that the employees' application of the Wyoming statute did not present a direct legal obstacle in the path of persons desiring to get married. Moreover, there was no plausible indication that the denial of the husband's claim for benefits was an attempt to interfere with the husband and wife's freedom to make a decision as important as marriage. While the husband and wife may have suffered an indirect burden on their marriage, there was no direct and substantial burden on their freedoms to marry and to associate with family. Although Wyo. Stat. Ann. § 27-14-403 did not permit consideration of spousal income in determining entitlement to extended permanent total disability benefits, and thus, the employees' interpretation and application of the statute was erroneous, the fact that benefits were withheld in violation of Wyoming law did not alter the finding that no federal constitutional rights were violated.  The district court's order granting the motion to dismiss was affirmed.  See generally Larson’s Workers’ Compensation Law § 80.04.

Dixson-Thomas v. Oklahoma County Bd. of County Comm'rs , 2008 App. LEXIS 20183; 21 Am. Disabilities Cas. (BNA) 23 (10th Cir. September 18, 2008).  Plaintiff, a former employee, appealed from the U.S. District Court for the Western District of Oklahoma the entry of summary judgment for defendant, a board of county commissioners, in a wrongful termination suit alleging discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C.S. §§ 12101-12213, and retaliatory discharge under the Oklahoma Workers' Compensation statute pursuant to Okla. Stat. tit. 85, § 5(A).  Although being absent for over two years for a work-related injury, when the office was restructured and plaintiff's position was abolished, would clearly have justified her termination, under state workers' compensation law plaintiff could not have been terminated until her protective temporary total disability (TTD) status expired. That period of postponed resolution went beyond the date plaintiff obtained a work release from her doctor because her office had extended TTD protective status until the conclusion of workers' compensation proceedings. In that context, her supervisor's statement that the matter belonged in the hands of the attorneys made perfect sense. For him to proceed before the lawsuit was resolved would have risked inadvertent violation of plaintiff's rights or imposition on the office of some unintended responsibility. The statement neither contradicted the proffered explanation for the termination nor otherwise suggested an improper motive for the termination. The timing of the termination was not in the least suspicious because it was the earliest that the termination was permissible. Plaintiff failed to present a triable issue of improper motive.  The court affirmed the judgment of the district court.  See generally Larson’s Workers’ Compensation Law § 104.07.

Holcim US Inc. v. Reed, 2008 App. LEXIS 19337 (5th Cir. September 9, 2008).  Petitioner, an employer of a deceased employee, sought review of an order of the Benefits Review Board (BRB) of respondent, the Department of Labor, affirming an administrative law judge's (ALJ) decision ordering the employer to pay death benefits to respondent mistress because she qualified as a dependent under § 9(d) of the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.S. § 909(d).  Although the employee remained married to respondent widow, he lived with the mistress for two years until his death from a work-related injury. The employer did not challenge the award of benefits to the widow under § 909(b) of the LHWCA. The ALJ determined that the mistress qualified as the employee's dependent pursuant to § 909(d), as defined under 26 U.S.C.S. § 152(a). On review, the court vacated the award to the mistress, finding that the mistress failed to establish that she continued to qualify dependent after the death of the employee as required under § 909(d). The written decisions of the ALJ and BRB were completely silent on the issue as to whether the mistress qualified as a dependent after the employee's death. Thus, the matter had to be remanded for a determination of this prospective requirement under § 909(d). The argument of the Department of Labor contending that the employer's only recourse was to challenge the continued dependency by a petition to modify under 33 U.S.C.S. § 922 was wholly unsupported by regulations, rulings or administrative practice.  The court vacated the award and remanded to the ALJ for a fact-finding and a determination as to whether the award of benefits comported with the requirement that a claimant collected benefits only during dependency.  See generally Larson’s Workers’ Compensation Law § 97.01, 97.06.

Dunn v. Astaris, LLC, 2008 App. LEXIS 18639 (8th Cir. August 27, 2008).  Appellant former employee brought an action in state court against appellee employer alleging that the employer wrongfully terminated the employee for exercising rights under state workers' compensation law. The employer removed the action to federal court, and the employee appealed the orders of the United States District Court for the Eastern District of Missouri that denied remand and entered judgment in favor of the employer.  The employer contended that the removal was proper because the employee's claim required interpretation of a collective bargaining agreement (CBA) and thus was preempted by the Labor Management Relations Act (LMRA), which in turn rendered the employee's claim untimely. The appellate court held, however, that preemption did not apply since any interpretation of the CBA was required only with regard to the employer's defenses rather than the employee's claim. The employee alleged only a retaliatory discharge under state workers' compensation law, and whether the employer had authority under the CBA to refuse to reinstate the employee did not render the employee's claim inextricably intertwined with consideration of the CBA.  The judgment in favor of the employer was vacated, and the case was remanded for entry of an order remanding the case to state court.  See generally Larson’s Workers’ Compensation Law § 104.07.

Westmoreland Coal Co. v. Amick, 2008 App. LEXIS 17747 (4th Cir. August 18).  Petitioner coal company, for the second time, petitioned for review of a decision and order of the Department of Labor's Benefits Review Board (BRB), affirming an administrative law judge's (ALJ's) award of benefits under the Black Lung Benefits Act to respondent claimant.  The ALJ's decision to give more weight to the opinions of the claimant's doctors and less weight to those of the company's doctors was supported by substantial evidence. The opinions of the claimant's doctors, unlike those of the company's doctors, discussed the latent and progressive nature of pneumoconiosis, were well supported by medical literature most consistent with the findings of the Department of Labor regarding the nature of pneumoconiosis, and took into account the possible effects of both cigarette smoking and coal mine dust exposure on the claimant's condition. The ALJ's decision to afford less weight to the opinions of the company's doctors was also amply supported by evidence in the record. One of the company's doctors made contradictory statements about the relevance of x-ray evidence in diagnosing pneumoconiosis, none of the opinions of the company's doctors took into account the latent and progressive nature of pneumoconiosis, and the opinions of the company's doctors failed to take into account both cigarette smoking and coal mine dust exposure as potential causes of the claimant's chronic obstructive pulmonary disease.  See generally Larson’s Workers’ Compensation Law § 130.05.

Hayward v. United States DOL, 536 F.3d 376; 2008 App. LEXIS 15177 (5th Cir. July 16, 2008).  Plaintiff widow, the survivor of a federal employee who died from cancer, appealed a judgment from the United States District Court for the Northern District of Texas, Fort Worth Division, that affirmed a decision by the Final Adjudication Branch of the Department of Labor (DOL) denying the widow survivor benefits under the Energy Occupational Illness Compensation Program Act, 42 U.S.C.S. § 7384 et seq.  The widow alleged that her husband, who worked in the Department of Energy's nuclear weapons program for more than 15 years, contracted cancer as a result of radiation exposure. The DOL's Office of Workers' Compensation Programs (OWCP) found that there was less than a 50 percent probability that his cancer was caused by his employment and denied benefits under 42 U.S.C.S. § 7384l(9)(B) of the Act. The widow argued that the OWCP arbitrarily refused to adjust the default settings in the interactive software program it used to estimate the causation probabilities in order to take into account her husband's exceedingly rare form of prostate cancer, sarcomatoid carcinoma. On appeal, the court held that the OWCP did not engage in arbitrary and capricious decision-making when it chose to retain the software program's default settings because the agency had consulted with a DOL physicist and had specifically explained why the dose-risk formula used to ascertain the decedent's cancer risk based on radiation exposure was accurate. In other words, the OWCP considered the relevant factors and provided a reasoned basis for its decision to deny the widow's claim.  The court affirmed.  See generally Larson’s Workers’ Compensation Law § 148.01.

Homestead Ins. Co. v. Guar. Mut. Ins. Co., 2008 App. LEXIS 15139 (5th Cir. July 11, 2008).  Plaintiff, an employer's liability insurer, appealed a grant of summary judgment by the United States District Court for the Eastern District of Louisiana in favor of defendant, a worker's compensation insurer, in plaintiff's action seeking a declaratory judgment that it did not have a duty to pay for the defense of a tort action against an insured in state court. The district court found that defendant had no obligation to defend the state suit.  The state court action alleged that the insured's employee intentionally drove a golf cart into another employee. Defendant initially undertook the insured's defense and did not reserve any of its rights when undertaking the defense. Defendant withdrew upon the filing of an amended complaint in the state action, with defendant alleging that its policy did not cover the suit. The insured assigned to plaintiff any rights it had against defendant. The issue before the court was which of the insurers were responsible for paying for the insured's defense. On review, the court vacated the grant of summary judgment. The district court failed to analyze the waiver doctrine. Consistent with Louisiana law, defendant waived its ability to raise a policy defense by defending the insured for over 20 months without first reserving its rights. Further, the insured properly assigned its rights under La. Civ. Code Ann. art. 2642; thus plaintiff was entitled to recover in the place of the insured under the assignment of rights. Finally, plaintiff's action was not barred because it was brought within the 10-year prescriptive period of La. Civ. Code Ann. art. 3499.  The court reversed the grant of summary judgment and remanded for further proceedings consistent with the opinion.  See generally Larson’s Workers’ Compensation Law § 103.01.

Brady v. PPL Mont., LLC, 2008 App. LEXIS 13899 (9th Cir. June 27, 2008).  Plaintiffs, an employee and his wife, challenged a judgment from the United States District Court for the District of Montana, which granted summary judgment in favor of defendant employer in a tort action in which the employee sought to recover damages sustained when he was injured on the job and the wife sought her own damages as a result of the employee's injury. The employee received workers' compensation for his injuries.  Plaintiffs argued that Mont. Code Ann. § 39-71-413 (amended 2001), which limited the tort liability of an employer who provided workers' compensation insurance to certain intentional conduct, on its face violated the Montana Constitution. On appeal, the court held that § 39-71-413 did not violate the equal protection provision set forth in Mont. Const. art. II, § 4 because § 39-71-413 did not treat employees of large corporations and small businesses differently, as an employer could still be held vicariously liable for an employee's conduct that the employer authorized. For the same reason, the statute did not violate the constitutional prohibitions on privileges and immunities under Mont. Const. art. II, § 31 and special legislation under Mont. Const. art. V, § 12. The court rejected plaintiffs' substantive due process challenge to § 39-71-413 because the legislature's decision to act legislatively to limit Sherner v. Conoco, Inc. by clarifying the statutory exception to the exclusive workers' compensation remedy was reasonably related to the goal of preserving the quid pro quo animating the workers' compensation insurance system.  The court affirmed the judgment of the district court. See generally Larson’s Workers’ Compensation Law § 103.01.