Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 21, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________
Clerk
No. 03-61028
Summary Calendar
__________________________

BRET TARVER,
Petitioner,
versus

BO-MAC CONTRACTORS, INC.; LIBERTY MUTUAL
INS.; DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, U.S. DEPARTMENT
OF LABOR,
Respondents.
___________________________________________________
Petition for Review of the Decision and Order of
the Benefits Review Board
___________________________________________________
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:
Repondent Bo-Mac Contractors, Inc. ("Bo-Mac") agreed to build two barge slips on vacant,
dry land near the intracoastal waterway in Carlyss, Louisiana. Petitioner Bret Tarver, a welder hired
by Bo-Mac, was seriously injured during the construction project. While working on the land side
of the excavation, an 80-foot beam came loose and pinned Tarver to construction scaffolding. At the
time of Tarver's injury, the construction site had been cleared and the slip holes had been excavated,
1

but the land between the holes and the waterway had not yet been removed. At some point after the
injury, Bo-Mac filled the slips with water by removing the wall of land between the excavated area
and the navigable waterway.
Tarver filed two claims against Bo-Mac--one under the Louisiana Workers' Compensation
Act and the other under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33
U.S.C. § 901 (2000). After a hearing, the administrative law judge ("ALJ") awarded Tarver benefits
under the LHWCA. The ALJ later denied Bo-Mac's motion for reconsideration. On appeal, the
Benefits Review Board ("BRB") reversed the ALJ's judgment, reasoning that Tarver's injury did not
occur on a situs that is covered by the LHWCA. Tarver timely appeals to this Court.
We must uphold BRB decisions that are supported by substantial evidence and are in
accordance with the law. Empire United Stevedores v. Gatlin, 936 F.2d 819, 822 (5th Cir. 1991).
The BRB's legal determinations are reviewed de novo. Boomtown Belle Casino v. Bazor, 313 F.3d
300, 304 (5th Cir. 2002).
The LHWCA provides that an employee may recover for personal injury
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).
33 U.S.C. § 903(a). Tarver contends that he is entitled to relief under § 903(a) because the Bo-Mac
construction site would, at some point in the future, serve a maritime purpose. Such a claim is
without merit.
"Whether an adjoining area is a § 903(a) situs is determined by the nature of the adjoining area
at the time of injury." Bazor, 313 F.3d at 304 (emphasis added)). This Court has created an
2

exception to this general rule, however, where a construction site--although not serving a maritime
purpose--was carved out of a covered situs and promised to support navigation in the future. See
Trotti & Thompson v. Crawford, 631 F.2d 1214, 1219 (5th Cir. 1980); see also Bazor, 313 F.3d at
304 (holding that an adjoining area was not a covered situs during its construction because the
location "had yet to be used for a maritime purpose").
It is uncontested that the Bo-Mac construction site, at the time of Tarver's injury, was not
serving a maritime purpose. Further, Tarver acknowledges that the site had not previously facilitated
navigation. As a result, our authority makes clear that such a situs does not meet the requirements
of the LHWCA. Finding no error in the judgment of the BRB, we AFFIRM.
3