                                                                               United States Court of Appeals
                                                                                        Fifth Circuit
                                                                                      F I L E D
                                REVISED FEBRUARY 2, 2007
                                                                                     January 10, 2007
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                  Charles R. Fulbruge III
                                                                                          Clerk
                                 FOR THE FIFTH CIRCUIT



                                          No. 05-41872



MARIA GENOVEVA ANAYA, MARIO ANAYA,
EDUARDO ANAYA, JESSICA ANAYA, AYDHEE ANAYA,
                                                                             Plaintiffs-Appellants,

                                              versus

TRAYLOR BROTHERS, INC.,
                                                                              Defendant-Appellee.



                          Appeal from the United States District Court
                              for the Southern District of Texas



Before REAVLEY, STEWART, and CLEMENT, Circuit Judges.

CARL E. STEWART, Circuit Judge:

       Humberto Anaya, an employee of Traylor Bros., Inc. (“Traylor”), suffered fatal injuries on

a barge while constructing a bridge. Soon thereafter, Traylor’s insurer began paying compensation

benefits to his beneficiaries (the “Anayas”). Approximately two months later, the Anayas filed suit

against Traylor for exemplary damages. The district court granted Traylor’s motion for summary

judgment. The court concluded that Traylor’s insurer paid the compensation benefits under the

Longshore and Harbor Workers’ Compensation Act (the “LHWCA”), which precludes the recovery

of exemplary damages. In this appeal, the Anayas argue that Traylor’s insurer was actually paying
benefits pursuant to the Texas Workers’ Compensation Act (the “TWCA”). We affirm the district

court’s judgment.

                      I. FACTUAL AND PROCEDURAL BACKGROUND

       Humberto Anaya worked for Traylor as a carpenter on the Texas Department of

Transportation Galveston Causeway project.        At the time of his fatal accident, Anaya was

constructing a bridge that connected Interstate 45 from Galveston Island to the mainland. On

October 15, 2004, while Anaya drilled bolt holes, a form collapsed and crushed him underneath a

concrete beam. Anaya died the same day. On October 18, 2004, the Anayas submitted an application

to the Texas Workers’ Compensation Commission (the “Commission”) for survivor benefits. The

Anayas subsequently received a series of benefit checks from Traylor’s insurer. On November 16,

2004, the Anayas’ attorney sent a notice of representation to the insurer. In response, Traylor’s

insurer informed the Anayas that the benefits were paid pursuant to the Longshore and Harbor

Workers’ Compensation Act, not the Texas Workers’ Compensation Act.

       On December 27, 2004, the Anayas filed a request to receive TWCA benefits. Two days

later, the Anayas filed suit against Traylor for exemplary damages based on Traylor’s alleged gross

negligence. In February 2005, Traylor’s insurer filed a dispute with the Commission to establish

whether the Anayas were entitled to benefits under the state or federal compensation scheme. On

August 25, 2005, the Commission found in favor of the insurer, ruling that the Anayas did not qualify

for TWCA benefits. Traylor then moved for summary judgment in the ongoing litigation because the

LHWCA bars gross negligence claims for exemplary damages. The district court granted summary

judgment to Traylor, reasoning that the LHWCA applied due to Anaya’s work on navigable waters.

                                  II. STANDARD OF REVIEW


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       This court reviews de novo a district court’s grant of summary judgment, applying the same

legal standards as the district court. Machinchick v. P.B. Power, Inc., 398 F.3d 345, 349 (5th Cir.

2005). If no genuine issue of material fact exists, then the moving party is entitled to judgment as a

matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court

must view all evidence in the light most favorable to the non-movant. Broussard v. Parish of

Orleans, 318 F.3d 644, 650 (5th Cir. 2003). If the evidence would permit a reasonable trier of fact

to find for the non-moving party, then summary judgment should not be granted. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247-48 (1986).

                                        III. DISCUSSION

A.

       Under the TWCA, an injured worker’s beneficiaries mayfile suit for exemplarydamages, TEX.

LAB. CODE ANN. § 408.001(b), but the LHWCA prohibits the recovery of exemplary damages, 33

U.S.C. §§ 904, 905(a). To receive benefits under the LHWCA, a worker must satisfy both a situs

and status test. Munguia v. Chevron U.S.A., Inc., 999 F.2d 808, 810 (5th Cir. 1993). The situs test

concerns geographic areas covered by the LWHCA, whereas the status test concerns an employee’s

type of work activities. P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 78 (1979). The situs test includes

injuries “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).” Bienvenu v. Texaco,

Inc., 164 F.3d 901, 904 (5th Cir. 1999) (citing 33 U.S.C. § 903(a)). The status test defines an

employee as “any person engaged in maritime employment, including any longshoreman or other




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person engaged in longshoring operations, and any harborworker including a ship repairman,

shipbuilder, and ship-breaker.” Id. (quoting 33 U.S.C. § 902(3)). In addition,

       a worker injured in the course of his employment on navigable waters is engaged in
       maritime employment and meets the status test only if his presence on the water at the
       time of injury was neither transient or fortuitous. The presence, however, of a worker
       injured on the water and who performs a “not insubstantial” amount of his work on
       navigable waters is neither transient nor fortuitous.

Bienvenu, 164 F.3d at 908 (footnote omitted).

       At the time of his accident, Anaya was undoubtedly located on navigable waters, which

satisfies the situs test. In this appeal, the status test determines whether the LHWCA applies to the

Anayas request for benefits. Neither this Circuit nor the Supreme Court provide a definitive

explanation of what constitutes a transient and fortuitous presence on navigable water. Id.; see also

Director v. Perini N. River Assocs., 459 U.S. 297, 324 n.34 (1983). In Bienvenu, the Fifth Circuit

sitting en banc contrasted the holdings of Fontenot v. AWI, Inc., 923 F.2d 1127 (5th Cir. 1991), and

Randall v. Chevron U.S.A., Inc., 13 F.3d 888 (5th Cir. 1994), as modified by 22 F.3d 568. The en

banc court affirmed Fontenot, which held that “a worker who spent 40% of his worktime on shore,

30% on fixed platforms and 30% on oil exploration and production vessels was engaged in maritime

employment because he was injured while on actual navigable waters, in the course of his

employment.” Bienvenu, 164 F.3d at 908-09 (citing Fontenot, 923 F.2d at 1130). Yet, the court

overruled Randall, which held that the LHWCA covered a mechanic performing all of his work duties

on navigable waters because “[h]e was simply transported to and from his workstation-a stationary

platform-by boat.” Id.

       Unlike the worker in Randall, and more similar to the analysis in Fontenot, Anaya spent the

majority of his time working on navigable waters. Anaya performed his construction duties on a


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barge located on navigable waters, and a boat carried Anaya between the shore and his work site. The

district court found that Anaya regularly worked on the barge and his October 15 work assignment

was not an aberration from his normal work tasks. Therefore, the LHWCA covers the Anayas’ claim

for benefits.

B.

        Section 406.091(a)(2) of the TWCA prohibits benefits to workers covered by analogous

federal laws. The TWCA reads in pertinent part that “a person covered by a method of compensation

established under federal law” is not subject to the statute. TEX. LAB. CODE ANN. § 406.091(a)(2).

The Anayas argue that a twilight zone of concurrent jurisdiction, established by the Supreme Court’s

holdings in Davis v. Dep’t of Labor, 317 U.S. 249 (1942), and Sun Ship, Inc. v. Pennsylvania, 447

U.S. 715 (1980), permits workers to elect benefits under either the TWCA or LHWCA. And

pursuant to this allowance, they elected to receive benefits under the TWCA, thus preserving their

right to file suit for exemplary damages. The Commission held that Anaya “is not entitled to all rights

and remedies under” the TWCA and is limited to recovery under the LHWCA. We agree with the

Commission’s analysis and interpretation of the federal and state compensation schemes as applied

in this instance, and therefore, reject the Anayas’ argument that Anaya was in a twilight zone. See

Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272, 273 (1959) (per curiam) (“[T]he employee

could not [elect a remedy] if the case were not within the ‘twilight zone,’ for then the

Longshoreman’s Act would provide the exclusive remedy.”). An employee subject to Anaya’s work

conditions on navigable waters may only recover under the LHWCA. Accordingly, an election of

benefits was not available for the Anayas.

                                        IV. CONCLUSION


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       Based on Bienvenu and the explicit language of the TWCA, we affirm the district court’s

grant of summary judgment to Traylor.




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