The opinion of the court was delivered by: GESELL
This diversity suit for negligence was brought by a construction worker injured in a job site accident. His cause of action is brought under the District of Columbia Workers' Compensation Act of 1928, D.C. Code § 36-501 et seq. (1973 ed.) ("the 1928 Act"), which while in effect made applicable to the District the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq.1 The case is before the Court on defendant's renewed motion for summary judgment.
The uncontested facts are that plaintiff William Holmes at the time of the accident was an employee of Blake Construction Co., and that Leon N. Weiner & Associates was the general contractor on a project for which Blake was the principal subcontractor of Weiner.
It is also uncontested that Blake paid the premiums for workers' compensation insurance for its employees, a policy under which the plaintiff duly filed for and received compensation.
Weiner contends that plaintiff's third-party action must be dismissed because as a general contractor it is immune under sections 4(a) and 5(a) of the Longshoremen's Act as applied to the District by the 1928 Act. In WMATA v. Johnson, 467 U.S. 925, 104 S. Ct. 2827, 81 L. Ed. 2d 768 (1984), the Supreme Court held that "so long as general contractors have not defaulted on [their] statutory obligation to secure backup compensation for subcontractor employees, they qualify for § 5(a)'s grant of immunity." Id. at 2836. This Court applied Johnson under circumstances similar to the instant case, holding that subcontractors who had not defaulted on their contingent liability under the statute, even though that liability had never been triggered by a subcontractor's default on its insurance obligations, were entitled to the immunity recognized by the Supreme Court. In re Metro Subway Accident Referral, 630 F. Supp. 385, 387 (D.D.C. Sept. 19, 1984).
The instant case is likewise controlled by Johnson.4 Weiner had a contingent obligation to Blake's employees, including plaintiff Holmes. It did not default on that obligation because Blake from the outset met its duty to provide insurance coverage for its employees injured on the job. Plaintiff's contention that Weiner can obtain immunity only if it shows it actually paid for the workers' compensation coverage of Blake's employees is irrelevant, because under Johnson a general contractor obtains immunity even if its contingent liability is never invoked and even if it never obtains or pays for the coverage of its subcontractors' workers, so long as the subcontractor meets its obligation under the 1928 Act to provide insurance.
The defendant's motion for summary judgment therefore must be granted. An appropriate Order is filed herewith.
Upon consideration of defendant's renewed motion for summary judgment, plaintiffs' opposition thereto, and the entire record herein, for reasons stated in an accompanying Memorandum, it is hereby
ORDERED that defendant's motion for summary judgment is granted, and the case is dismissed with prejudice, and it is further
ORDERED that the intervenor's complaint of Aetna Casualty & Surety Company is ...