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RHODES v. DONOHOE CONSTR. CO.

October 29, 1981

John L. RHODES, Jr., et al., Plaintiffs,
v.
DONOHOE CONSTRUCTION COMPANY, et al., Defendants



The opinion of the court was delivered by: PRATT

MEMORANDUM OPINION

Plaintiffs instituted this action to recover damages for defendants' alleged negligence. Each of the three defendants has moved for summary judgment on the identical grounds that plaintiffs failed to commence their action within the time permitted by the applicable workers' compensation statute. We conclude that plaintiffs' action was timely filed and that defendants' summary judgment motions should be dismissed.

 Factual Background

 On February 27, 1979, John Rhodes suffered severe injuries when he fell through a scaffold catwalk at the construction site of the Washington Technical Institute (WTI) in the District of Columbia. At the time of the accident, Rhodes was employed as a construction worker for Nueva Construction Company, a subcontractor on the WTI project.

 Rhodes filed a claim for workers' compensation on March 26, 1979 with Nueva's compensation carrier, Aetna Casualty and Surety Company. Aetna arrived at a settlement with Rhodes, and on February 8, 1980, Rhodes received a compensation order which had been signed and approved by the Deputy Commissioner of the Office of Workers' Compensation Programs. Pursuant to that settlement, a check was mailed to Rhodes on February 12, 1980. He received the check on February 21, 1980 and that same day deposited it in his bank.

 On August 12, 1980 Rhodes filed the present action alleging negligence on the part of Donohoe Construction Company, the general contractor on the WTI project; Peck and Hiller Company, the sub-subcontractor on the project; and Parametric, Inc., a company under contract to the owner of the building on which the scaffolding was placed (the General Services Administration) to insure job safety at the site. Janice Rhodes also brought action for losses which resulted from her husband's injuries. Each of the three defendants has moved for summary judgment on the grounds that plaintiffs failed to file the present action within the time provided under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 933(b) (made applicable to the District of Columbia by 36 D.C.C.E. § 501 et seq.).

 Discussion

 The District of Columbia has adopted the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), along with all of its present and future amendments, as its workers' compensation law. D.C.C.E. § 501 et seq. LHWCA provides, in pertinent part, that acceptance of compensation under an award in a compensation order,

 
shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person (the tortfeasor) unless such person shall commence an action against such third person within six months after such award.

 33 U.S.C. § 933(b).

 The Supreme Court, in a recent decision, mandated that the six-month time limitation on an action by an injured claimant against the person responsible for his injuries must be strictly enforced. Rodriquez v. Compass Shipping Co., Ltd., 451 U.S. 596, 101 S. Ct. 1945, 1950, 68 L. Ed. 2d 472 (1981).

 The novel question which arises in the present case, and which the court in Rodriquez did not address directly, is whether the six-month period contained in 33 U.S.C. § 933(b) begins to run on the date the claimant receives the compensation order, or on the date the claimant receives and accepts funds pursuant to an award in that order.

 Since the statutory provision is not a model of clarity, we have resorted to the legislative history to ascertain the legislative intent. The language and legislative history of the statute and its practical application warrant a finding that a claimant's receipt and acceptance of funds awarded in a compensation order commences the six-month period during which the claimant may bring action.

 The pertinent provisions of 33 U.S.C. § 933(b) were enacted by Congress as an amendment to LHWCA in 1959. P.L. 86-171, § 33(b), 73 Stat. 391 (1959). In introducing the proposal which ultimately became P.L. 86-171, *fn1" then Senator John ...


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