DBA Claims with Third Party Liability

While rare, an attorney should always consider the viability of pursuing a third-party claim where a DBA injury is due to the negligence of a third-party other than your employer. This is allowed under 33 U.S.C. Section 933 (a) but has a strict requirement of notification under subsection (g)Compromise obtained by person entitled to compensation:

“1.  If the person entitled to compensation (or the person’s representative) enters into a settlement with a third person referred to in subsection (a) for an amount less than the compensation to which the person (or the person’s representative) would be entitled under this chapter, the employer shall be liable for compensation as determined under subsection (f) only if written approval of the settlement is obtained from the employer and the employer’s carrier, before the settlement is executed, and by the person entitled to compensation (or the person’s representative). The approval shall be made on a form provided by the Secretary and shall be filed in the office of the deputy commissioner within thirty days after the settlement is entered into.

2.  If no written approval of the settlement is obtained and filed as required by paragraph (1), or if the employee fails to notify the employer of any settlement obtained from or judgment rendered against a third person, all rights to compensation and medical benefits under this chapter shall be terminated, regardless of whether the employer or the employer’s insurer has made payments or acknowledged entitlement to benefits under this chapter.”Do not settle your third-party case without first obtaining written permission from both the employer and the DBA insurance company to settle the third party claim.  If you settle the third-party claim without getting written consent you will lose all future compensation and medical treatment payable by the DBA insurance company. If you are settling your third-party case for less than the compensation you are entitled to under the DBA case, you must obtain written approval on Longshore DBA Form LS-33 which must be filed within 30 days of the settlement with the District Director.

You most likely do not have a third-party case when your injury was in a war zone. However, there are always exceptions. I’ll give a few examples: When you are electrocuted by faulty electrical work in your building which was installed by a contractor other than your employer. Or say a fan is defective and cuts your fingers which means you have a product liability case against the maker or seller of the fan. Or if another person driving a vehicle caused you injury you can pursue that if there is insurance coverage for the vehicle’s owner or driver.

So in non war zones, a third-party case is bit easier because the defendant should not be able to successfully argue sovereign immunity or that the work is  subject to national defense security. That being said, these are difficult cases. If the third party settlement value is less than your future benefits under the DBA case and you cannot obtain the necessary consent, you have to be prepared to forego the third party settlement.  For instance in a recent death case we handled, we had to evaluate the viability and value of a third party lawsuit and settlement vs the value of the Defense Base Act claim. So it is recommended to determine if there is a third party suit and balance the settlement value of each case. See the pitfalls to avoid in Edwards v Marine Repair BRB decision 15-0112.

Our law firm is prepared to advise you on these many issues and our initial consultation is always free.