Can You Exclude Corporate Officers Under the Longshore Act?
In answer to the previous question regarding joint and several liability
we saw how much trouble the corporate officers of an uninsured employer can get into under the Longshore Act. So we might as well look at another question involving corporate officers.
Question: Can an employer exclude its corporate officers from its workers’ compensation insurance coverage under the Longshore Act?
Answer: No way.
The definition of “employee” under the Longshore Act is contained in section 902(3):
The term “employee” means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor worker, including a ship repairman, shipbuilder, and ship-breaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.
The term “any person” includes all management and executive personnel.
Sections 902(3)(A) through 902(3)(H) contain coverage exclusions added by the 1984 amendments, but none mentions corporate officers.
The only other place in the Act where corporate officers are mentioned is section 941(f), where “officers” who willfully violate the section 941(a) safety rules and regulations can be fined.
So the answer here is the same as the answer to question number 11 concerning whether small employers can opt out of coverage. Don’t even think about it.
Coverage under the Longshore Act is without regard to the title of the employee, whether management or non-management, officer or non-officer. An employee who meets the situs and status requirements is covered.
How about this example. A corporation has one employee. He’s the president. He actually goes out everyday and does the company’s maritime business. He is injured on the job. Can he file a claim? As someone once said, “You betcha!”
Admittedly, it might get a little weird. If the employer doesn’t have Longshore Act insurance then the employee has the option to sue in tort. So he can sue himself. We can let the courts sort that out. All we have to remember is that corporate officers must be included in Longshore Act coverage.
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.