Defense Base Act Lawyers Discuss New Double Recovery Case Law –
A new decision from the “Benefits Review Board” came down recently that allows “double recovery” (or “double dipping”) in certain Defense Base Act cases, under certain circumstances, for certain types of contractors.
The Defense Base Act specifically states that the liability of an employer is “exclusive and in place of all other liability” for injuries that fall within the purview of the DBA. This has always been interpreted to mean that there is no “double dipping”, i.e. you cannot collect DBA benefits and pursue compensation under a negligence or other claim.
But, in the recent case of Newton-Sealey v. Armorgroup Services (Jersey) Limited The Benefits Review Board was faced with a British citizen who was pursuing both a Defense Base Act claim in U.S. courts and a negligence/breach of contract claim in British court. Even though the injured worker settled the U.K. (British) claim, he continued pursuing the DBA claim in the U.S..
Lawyers Defense Base Act Workers Comp May NOT Be Your Only Remedy!
The board of Review issued a decision stating that the claimant could collect both the DBA benefits and pursue the negligence claim in his own country, stating: “Under the laws of the UK, claimant has a right to pursue both a local workers’ compensation claim and a tort remedy against his employer.”
Unfortunately this “double dipping” is NOT permitted by U.S. citizens. By virtue of their status as an American citizen, injured workers from the U.S. are still prohibited from double recovery. In fact the Review Board expressly stated: “The rights of foreign nationals under the Act are not always the same as those of American citizens and residents.”
So, while this doesn’t affect American workers who qualify for Defense Base Act benefits, it is very good news for foreign nationals who may qualify for DBA benefits. This precedent means that DBA carriers will not get to raise an exclusivity defense against a foreign law in a U.S. court because the proper venue for the exclusivity defense is in the foreign court, where the carrier is not a party.
While the Newton-Sealey case dealt only with a British claimant, chances are high that a similar outcome could be reached in other countries. So, any foreign national employed by a Defense Base Act contractor should understand that – at least under US law – they can maintain a separate but entirely permissible second lawsuit for the same injury covered by the DBA in their own country.
Any foreign national employed by a DBA contractor should check their own home country’s laws to determine whether they can maintain a separate, permissible second lawsuit for the same injury covered by the DBA.
Call Our Long Beach / Los Angeles Defense Base Act Lawyers if You Have DBA Questions
If you are an employee who was injured while working for a Defense Base Act contractor, our experienced Defense Base Act lawyers would be happy to discuss your case with you, so you understand all of your options.