Coverage for Work on Bridges
Jul 13, 2010
- Jack Martone, The American Equity Underwriters, Inc.
Work done on and around bridges is the subject of recurring questions with regard to coverage under the Longshore and Harbor Workers’ Compensation Act. So at the risk of doing more harm than good, I’ll try to summarize some general principles as I understand them.
- The current version of Section 903(a) of the Longshore and Harbor Workers’ Compensation Act states, “Except as otherwise provided in this section, compensation shall be payable under this Act in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel).” You must be working over the navigable waters of the U.S., or on one of the listed enumerated sites, or in an “other adjoining area” customarily used for maritime activity.
- Section 903(a) prior to the 1972 amendments to the Longshore Act stated, “Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock)….” Prior to the 1972 amendments, workers were covered only if they worked over the navigable waters of the U.S. or on a dry dock. This was a situs test only. There was no status test prior to the ’72 amendments. If you were over the water you were covered.
- Note that in neither version are bridges mentioned, either prior to the 1972 amendments when coverage was limited to injuries occurring over the water or on dry docks, or after the 1972 amendments when coverage was extended landward to the enumerated sites or other adjoining areas customarily used for maritime activity. Bridges were not considered to be covered sites prior to the 1972 amendments (they were considered to be extensions of land) and were not included in the 1972 amendments when certain locations were enumerated as covered.
- “Perini” coverage is still good law. In 4) Director, OWCP v. Perini North River Associates, 459 U.S. 297 (1983), the U.S. Supreme Court held that Congress, in amending the Act to expand coverage landward in 1972, did not intend to withdraw coverage from workers injured on navigable waters who would have been covered by the Act prior to the amendments (situs test only). If you would have been covered pre-1972 amendments (injured over the water) then you are covered under current law. But working on bridges permanently affixed to land is not considered working over the water, as bridges are considered to be extensions of the land. So, generally speaking, bridge workers do not have Longshore coverage by virtue of Perini.
Since work on bridges permanently affixed to land is generally not covered under the Longshore Act, since a bridge is not a covered site and was not covered prior to the 1972 amendments, what are some of the circumstances that might provide exceptions to this general proposition?
- What if the bridge worker is not working on the bridge itself, but rather working from a barge or work platform floating on the water? Here you could have Longshore coverage, since the worker is working over the water and not on a bridge permanently fixed to land.
- What if the bridge is incomplete, not yet permanently attached to land, and the worker is working on a section surrounded by water? You could have Longshore Act coverage.
- What if the bridge is incomplete and the worker is working on the partially built section jutting out over the water? At least two federal circuit courts of appeals might consider that to be a pier, i.e., an enumerated situs in section 903(a). (You know, a pier, what James Joyce would call a disappointed bridge).
- What if the bridge is “floating”, that is, not permanently affixed to land? You might have Longshore Act coverage.
- What if you are working on a structure temporarily affixed to a bridge? You might have Longshore Act coverage. You are over the water and not working on a permanently affixed extension of land.
Note that we have only been discussing coverage for bridge work in the context of “situs”. We’ve concluded that bridges are not covered sites under the Longshore Act unless there is something about the “bridge” that may constitute an exception to the principle of bridge as extension of land. But what if you think that you meet the situs requirement but aren’t sure if Perini coverage applies?
Longshore Act coverage issues require a discussion of status as well as situs. Status is usually a secondary consideration in bridge cases. If you meet the situs element for coverage along the lines of the exceptions suggested above then you will usually satisfy status by virtue of Perini.
But what about status? Is work on a bridge considered maritime employment? It depends. You need a strong maritime connection of some kind to have an argument for coverage under the status criteria. For example, what effect will the work have on water borne commerce? If you can make a strong argument that the purpose of the work is to aid, regulate, or otherwise influence maritime commerce, such as work on a drawbridge that will improve the flow of commerce, then you may have “status”. In some federal circuits, but not all, if you are unloading construction materials at the job site this may give you status.
So that about sums it up. Work on bridges is covered under state workers’ compensation statutes, but maybe it’s covered under the federal Longshore Act, or both (see previous discussion involving concurrent jurisdiction).
A useful approach might be to start by assuming that work on a bridge is covered by state act workers’ compensation and then look for any of the circumstances that might possibly involve Longshore Act exposure; that is, it’s not really a bridge (a completed structure permanently affixed to land), you are working over the water, and/or are arguably engaged in maritime employment (loading and unloading).
But remember, as with most coverage issues, consider all of the facts. If you have only one half of the facts then you only have a 50% chance of reaching the most likely to be correct conclusion.
In view of the previous discussions with regard to the consequences to the company and corporate officers of being uninsured, if there is any doubt whatsoever as to coverage requirements, it is wise to be covered for both state and federal exposures.
ABOUT THE AUTHOR
John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of AEU's Longshore Insider.
The opinions and comments expressed in this article are those of the authors and do not reflect the opinion of ALMA, AEU or AmWINS. None of ALMA, AEU, AmWINS or the authors are responsible for any inaccuracy of content or for any loss or damages incurred by any party as a result of reliance on information contained in this article. Content may not be published or reproduced without the written consent of the authors. Prior articles may not be updated for accuracy as pertinent information changes over time. The Longshore Insider is intended to provide general information about the industry and should not be construed as legal advice.