In re Shippers Stevedoring Co. (Tex.App.- Houston [14th Dist.] Nov. 20, 2008)(Guzman)
(mandamus) (worker place death,
federal preemption claim, state law claims vs. federal act, Texas Workers
Compensation Act, exclusive remedy, nonsubscriber, Longshore and Harbor Workers' Compensation Act)
Justice Guzman  
Before Chief Justice Hedges, Justices Guzman and Boyce
14-08-00438-CV        In Re Shippers Stevedoring Company
Appeal from Probate Court No 3 of Harris County


On May 29, 2008, relator, Shippers Stevedoring Company (“Shippers"), filed a petition for writ of mandamus in
this court.  See Tex. Gov't Code Ann. § 22.221 (Vernon 2004); see also Tex. R. App. P. 52.  In the petition,
relator asks this court to compel the Honorable Rory R. Olsen, presiding judge of Probate Court Number
Three, Harris County, Texas, to vacate his May 12, 2008 order denying relator's plea to the jurisdiction and to
grant the same.  Because Shippers has not established its entitlement to the extraordinary relief of a writ of
mandamus, we deny its petition for writ of mandamus.

I.  Factual and Procedural Background

Chavon Lewis was crushed by a forklift while working as a checker for Shippers Stevedoring at a Port of
Houston dock on the Houston Ship Channel.  Her heirs and estate, the real parties in interest in this
proceeding, brought wrongful death and survival claims which ultimately were consolidated in Harris County
Probate Court No. 3.[1]  In February 2006, Shippers filed a motion for final summary judgment, asserting that it
is “immune from any tort action brought by Plaintiffs as a matter of law" because the Longshore and Harbor
Workers' Compensation Act ("LHWCA") provided the real parties in interest's exclusive remedy arising from
Lewis's death.  The trial court denied the motion.

Seventeen months later, Shippers moved unsuccessfully for partial summary judgment on the grounds that it is
a subscriber to the Texas Workers' Compensation Act and therefore exempt from liability on  claims of
negligence and negligence per se arising from Lewis's death.  Shippers petitioned this court for a writ of
mandamus compelling the trial court to reverse its denial of the motion, and this court denied the requested
relief.  In re Shippers Stevedoring Co., No. 14‑08‑00031‑CV, 2008 WL 256940 (Tex. App.-Houston [14th Dist.]
Jan. 31, 2008, orig. proceeding) (per curiam) (mem. op.).

On February 12, 2008, Shippers filed a plea to the jurisdiction in which it argued that the probate court lacks
subject-matter jurisdiction over the claims asserted against Shippers because (a) the LHWCA provides the
exclusive remedies arising from Lewis's death, and (b) the Department of Labor has exclusive original
jurisdiction to adjudicate claims arising under the LHWCA.  According to Shippers, the probate court would
usurp the Department of Labor's authority if allowed to proceed to trial on the asserted claims.  The trial court
initially granted the requested relief, but after a successful motion for reconsideration, the trial court denied the
plea to the jurisdiction.  Shippers now petitions the court for a writ of mandamus compelling the trial court to
reverse its ruling, grant Shippers's plea, and dismiss the claims against it.

II.  Issues Presented

In two issues, Shippers contends that the trial court abused its discretion by denying Shippers's plea to the
jurisdiction, and more specifically, by basing that denial “on a supposed Texas 'twilight zone'" of overlapping
jurisdiction between the LHWCA and the Texas Workers' Compensation Act.

III.  Standard of Review

To demonstrate entitlement to mandamus relief, a relator must show that the trial court committed a clear
abuse of discretion and there is no adequate remedy by appeal.  In re Ford Motor Co., 165 S.W.3d 315, 317
(Tex. 2005) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig.
proceeding).  A trial court abuses its discretion when it fails to correctly apply the law.  Ford Motor, 165 S.W.3d
at 317; Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).  Even if the area of law is
unsettled, the trial court abuses its discretion in reaching an erroneous legal conclusion.  Huie v. DeShazo,
922 S.W.2d 920, 927-28 (Tex. 1996).

IV.  Analysis

To clarify the arguments presented, we begin with a brief overview of the history and application of the LHWCA.

A.      Concurrent Jurisdiction of Federal and State Compensation Schemes

The LHWCA is a federal, no-fault workers' compensation scheme enacted in 1927 to provide compensation for
work-related injuries or death of nonseaman maritime workers.  Longmire v. Sea Drilling Corp., 610 F.2d 1342,
1349 (5th Cir. 1980).  Before 1972, compensation under the LHWCA was limited to employee injuries
sustained on navigable waters and dry docks.  Dir., Office of Workers' Comp. Programs, U. S. Dep't of Labor v.
Perini N. River Assocs., 459 U.S. 297, 299 (1983).  Such injuries were covered under the LHWCA regardless
of whether they also were covered by a state workers' compensation scheme.  Calbeck v. Travelers Ins. Co.,
370 U.S. 114, 124 (1962).  Coverage under the LHWCA generally stopped at the water's edge, and the states
were left to legislate their own workers' compensation schemes on the landward side of that line.  Longmire,
610 F.2d at 1349.

In 1972, Congress amended the Act to extend LHWCA coverage to certain adjoining areas of land.  Id.  
Although it became possible for land-based injuries to nonseaman maritime workers to be subject to both the
state and federal workers' compensation scheme, each act purported to be exclusive.  See 33 U.S.C.A. ' 905
(West 2001); Tex. Lab. Code Ann. § 408.001 (Vernon 2006).  This raised the question of whether state or
federal law applied to such claims.  A state law that conflicts with federal law is preempted and without effect.  U.
S. Const. art. VI, cl. 2;  Maryland v. Louisiana, 451 U.S. 725, 746 (1981); Mills v. Warner Lambert Co., 157 S.W.
3d 424, 426 (Tex. 2005) (per curiam).  The question of the extent to which such laws conflicted was not
resolved by referring solely to the text of either legislation.  

The Texas Workers' Compensation Act provides that “[r]ecovery of workers' compensation benefits is the
exclusive remedy of an employee covered by workers' compensation insurance coverage or a legal beneficiary
against the employer or an agent or employee of the employer for the death of or a work‑related injury
sustained by the employee."  Tex. Lab. Code Ann.  § 408.001(emphasis added).  Likewise, the LHWCA
provides in relevant part:

The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other
liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next
of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account
of such injury or death . . . .

33 U.S.C.A. § 905 (emphasis added).  At a glance, then, it might appear that the LHWCA preempts all state
law claims against a covered workers' employer, including claims asserted under state workers' compensation
legislation.  This, however, is not the case.

The exception to this rule is articulated in Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980).  In Sun Ship,
the United States Supreme Court described the “jurisdictional dilemma" that would result if there were no
overlap between the state and federal compensation schemes, and recalled the risk of prejudice to injured
workers that would result from “compelling laborers to seek relief under two mutually exclusive remedial
systems . . . ."  Id. at 720.  As the Court explained, such an approach would be “defeat[ing] the purpose of the
federal act, which seeks to give 'to these hardworking men, engaged in a somewhat hazardous employment,
the justice involved in the modern principle of compensation,' and the state acts . . . which i[m] at 'sure and
certain relief for workmen.'" Id. (quoting Davis v. Dep't of Labor & Indus. of Wash., 317 U.S. 249, 254 (1946)).  
Thus, the Court concluded that state workers' compensation laws share concurrent jurisdiction with the
LHWCA,[2] and Aif state remedial schemes are more generous than federal law, concurrent jurisdiction could
result in more favorable awards for workers' injuries than under an exclusively federal compensation system."
[3]  Moreover, concurrent jurisdiction presented no danger of double recovery 'since employers' awards under
one compensation scheme would be credited against any recovery under the second scheme.  Id. at 725 n.8
(citing Calbeck, 370 U.S. at 131).

The Sun Ship exception to federal preemption is narrow and does not extend beyond those claims
encompassed by the state workers' compensation act.  The United States Supreme Court has further clarified
the construction of section 905 of the LHWCA and explained that, aside from the Sun Ship exception of “some
state workers' compensation claims," the LHWCA “expressly preempts all other claims" against an employer or
vessel owner by reason of a nonseaman maritime employee's land-based injury or death.  Norfolk Shipbuilding
& Drydock Corp. v. Garris, 532 U.S. 811, 818-19 (2001) (emphasis added) (distinguishing heir's claims under
the Virginia wrongful‑death statute against a negligent third-party that neither employed the decedent nor
owned the vessel on which the accident occurred).

In effect, then, the LHWCA preempts all negligence claims[4] asserted under state wrongful‑death statutes[5]
against the workers' employer and provides the exclusive remedy for such claims to the workers' estate and
heirs, except for claims compensable under the state worker's compensation act.[6]  In Texas, the claimant's
choice of remedies is made simpler still, because “a person covered by a method of compensation established
under federal law" is not subject to the state Workers' Compensation Act at all.  Tex. Lab. Code Ann. § 406.091
(a)(2) (Vernon 2006).

Against this backdrop we consider the issues and arguments presented.

B.      Claims of the Real Parties in Interest

Although a plea to the jurisdiction should be decided without delving into the merits of the case, the claims
form the context against which the plea is raised.  Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.
2000).  Here, the real parties in interest contend they “are entitled to elect between the compensation system
in place in the federal system - the LHWCAC and the compensation system in place in Texas - the workers'
compensation system."[7]  They contend they have chosen to pursue remedies under the state workers'
compensation scheme, and because  persons who are covered by the LHWCA are exempt from the Texas
Workers' Compensation Act (and similarly excluded from Shippers' state workers' compensation insurance
coverage), they characterize Shippers as a “nonsubscriber" to workers' compensation coverage - at least, with
regard to Lewis.  They further reason that, because non-subscribing employers  waive the defenses available
against negligence claims under the Texas Workers' Compensation Act and instead may be sued directly
under the Wrongful Death Act, they likewise must be permitted to sue Shippers directly under the Wrongful
Death Act.  In sum, Lewis's estate and survivors contend that Shippers has lost the defenses provided by both
the federal and state compensation acts because Shippers lacks state workers' compensation insurance
covering Lewis, even though Lewis is exempt from the Texas Workers' Compensation Act as a matter of law.[8]

C.      Shippers's Plea to the Jurisdiction

In its plea to the jurisdiction, Shippers argued that the trial court lacked subject-matter jurisdiction over the
claims asserted against it because the U. S. Department of Labor has exclusive jurisdiction to determine all
questions involving liability for Lewis's death.  As explained in Sun Ship, a state has concurrent jurisdiction to
provide a workers' compensation scheme applicable to the land-based injuries of nonseaman maritime workers.

Our state legislature, however, has exempted such workers from the Texas Workers' Compensation Act; thus,
Texas workers' compensation law currently provides no alternative remedy to the compensation scheme set
forth in the LHWCA.[9]  

Here, the parties agree that Lewis was killed in the course of her employment as a checker and therefore was
covered by the LHWCA.[10]  Shippers next points out that because Lewis was covered by the LHWCA, she
was not subject to the Texas Workers' Compensation Act, and thus, the exclusive remedies against Shippers
for negligence claims arising from Lewis's death are those provided in the LHWCA.  See  33 U.S.C.A. § 905;
Tex. Lab. Code Ann. § 406.091.  From these premises, Shippers reasons that the U.S. Department of Labor
has exclusive original jurisdiction to make an initial determination of the merits of the real parties in interest's
claims.  Thus, Shippers concludes, the probate court lacks subject-matter jurisdiction over the claims asserted
against Shippers.

D.      Application of the Plea to the Jurisdiction to the State Law Claims

In effect, Shippers treats the real parties in interest's claims under the state wrongful-death and survival
statutes as if the parties actually sought compensation under the LHWCA.  The real parties in interest,
however, do not assert claims for compensation under the LHWCA.  As plaintiffs, each real party in interest “is
master to decide what law he will rely upon,"[11] and here, each plaintiff has brought against Shippers only
state-law claims pursuant to the wrongful-death and survival statutes.  By arguing that such claims are
preempted, Shippers has raised an affirmative defense.  Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987)
(“Federal pre-emption is ordinarily a federal defense to the plaintiffs' suit."); Harrill v. A.J.'s Wrecker Serv., Inc.,
27 S.W.3d 191, 194 (Tex. App.- Dallas 2000, pet. dism'd w.o.j) (“Preemption is an affirmative defense.").  But
regardless of the merit of that defense to the specific claims pleaded in this case - a question that we do not
reach - its assertion does not deprive the state trial court of subject-matter jurisdiction.  See Mills v. Warner
Lambert Co., 157 S.W.3d 424, 426 (Tex. 2005) (per curiam) (stating that federal preemption is generally an
affirmative defense to suit but does not ordinarily deprive a state court of jurisdiction).  Moreover, we will not
recharacterize the state-law claims asserted by the real parties in interest as federal claims.  See Aaron v. Nat'l
Union Fire Ins. Co. of Pittsburg, Pa., 876 F.2d 1157, 1164-65 (5th Cir. 1989) (concluding that LHWCA did not
so preempt field of state law that state action for wrongful death of the longshoreman had to be
recharacterized as stating federal cause of action, as would authorize removal), cert. denied,  493 U.S. 1074
(1990); Tex. Employers' Ins. Ass'n v. Jackson, 862 F.2d 491 (5th Cir. 1988) (holding that rights created by the
LHWCA are not uniquely federal rights enforceable in federal court of equity so as to permit injunction against
state court action based on state law claims which are preempted by the Act), cert. denied, 490 U.S. 1035
(1989).  The trial court therefore did not abuse its discretion in denying Shippers's plea to the jurisdiction
concerning these claims.  See Mills, 157 S.W.3d at 425 (“State-court jurisdiction is affected only when
Congress requires that claims be addressed exclusively in a federal forum."); Romney v. Lin, 105 F.3d 806,
813 (2d Cir. 1997) (“There are thus some cases in which a state law cause of action is preempted, but only a
state court has jurisdiction to so rule.").

V.  Conclusion

Because relator Shippers has failed to show that the probate court lacks subject‑matter jurisdiction over the
claims asserted, it has failed to establish its entitlement to the extraordinary relief of a writ of mandamus.  We
therefore deny relator's petition for writ of mandamus.

/s/      Eva M. Guzman


Petition Denied and Opinion filed November 20, 2008.

Panel consists of Chief Justice Hedges and Justices Guzman and Boyce.


[1]  The consolidated cases originally bore cause numbers 364,336-401; 361,074-402; 361,075-402; and

[2]  Id. at 723-24.

[3]  Id. at 724.

[4]  Cf. 33 U.S.C.A. ' 902(2) (defining “injury" to include occupational diseases or infections, an “accidental
injury or death arising out of and in the course of employment," and Aan injury caused by the willful act of a
third person directed against an employee because of his employment.") (emphasis added).

[5]  See Norfolk Shipbuilding, 532 U.S. at 818.

[6]  No intentional torts are at issue in this case, and we express no opinion regarding the preemption of such

[7]  Real Parties' Response to Shippers'[s] Petition for Writ of Mandamus on Federal Preemption and Exclusive
Jurisdiction (“Response"), at 10.

[8]  See Tex. Lab. Code Ann. ' 406.091.

[9]  Id.

[10]  The parties do not dispute that, as a “checker," Chavon Lewis was covered under the LHWCA.  See Ne.
Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 271 (1977) (holding that employee whose “job was to check
and mark items of cargo as they were unloaded from a container" is covered by the LHWCA under the 1972
amendments) (citing S.Rep. 13; H.R.R. Rep. 11, U.S. Code Cong. & Admin. News 1972, p. 4708).

[11]  The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913).