Opinion · District Court, D. Maryland

Oleszczuk v. Calmar Steamship Corp.

Oleszczuk v. Calmar S.S. Corp., 163 F. Supp. 370 (District Court, D. Maryland 1958)

Type: Opinion
Court: District Court, D. Maryland
Jurisdiction: Maryland
Date: 1958-06-30
Topic: employee-benefits-and-executive-compensation

How later courts describe this case

noting stevedore's employment of its own attorneys to protect its lien

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UpLaw has not yet analyzed Oleszczuk v. Calmar Steamship Corp.. The absence of a flag is not a finding that it is good law.

Authority status: pending
Cited by: 18 opinions

OLESZCZUK v. CALMAR STEAMSHIP CORP., (D.Md. 1958)

163 F. Supp. 370

Joseph OLESZCZUK v. CALMAR STEAMSHIP CORP., Defendant and Third-Party

Plaintiff, Nacirema Operating Co., Inc., Third-Party, Defendant.

No. 9179.

United States District Court, D. Maryland,

Civil Division

June 30, 1958.

West Page 371

John J. O'Connor, Jr., Baltimore, Md., for plaintiff.

Lord, Whip Coughlan, George W.P. Whip and Robert E. Coughlan, Jr., Baltimore, Md., for Calmar S.S. Corp.

Piper Marbury, Jesse Slingluff, Jr., and Mathias J. DeVito, Baltimore, Md., for Nacirema Operating Co., Inc.

THOMSEN, Chief Judge.

Plaintiff longshoreman has obtained a judgment for $35,000 against defendant shipowner, out of which his counsel has retained $1,614.75 to reimburse Travelers, his employer's insurance carrier, which had paid that amount to or for plaintiff as compensation and medical expenses under the Longshoremen's and Harbor Workers' Compensation Act,33 U.S.C.A. § 901et seq., without an award. Plaintiff's counsel now claims the right to deduct a portion of his fee out of the $1,614.75.

The fact that carrier's payments were made without an award does not relieve plaintiff of his duty to reimburse carrier out of the recovery from defendant herein. The Etna, 3 Cir.,138 F.2d 37; Fontana v. Pennsylvania R. Co., D.C.S.D.N.Y.,106 F. Supp. 461, affirmed 2 Cir.,205 F.2d 151; Poleski v. Moore-McCormack Lines, D.C.Md.,21 F.R.D. 579. By accepting such payments without an award and then electing to sue a third person in accordance with the provisions of33 U.S.C.A. § 933(a), an employee may control the right of action against the third person and still retain his right to additional compensation under sec. 933(f). But he and his counsel have no right to deduct any fee out of that portion of the recovery which must be used to reimburse the carrier. Fontana v. Pennsylvania R. Co., supra. See also Ocean S.S. Co. v. Lumbermen's Mutual Casualty Co., 2 Cir.,125 F.2d 925, construing the New York statute which is similar to the Longshoremen's Act. Plaintiff has cited no authority to the contrary. It was necessary to amend the Maryland statute to give plaintiff and his counsel such a right in a similar situation. Md. Code, 1957 ed., Art. 101, sec. 58, Act of 1947, ch. 608.

The claim of plaintiff and his counsel is hereby denied. The full amount of $1,614.75 should be paid over to Travelers.West Page 388