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DENENBERG v. EMPLOYERS' LIAB. ASSUR. CORP.

August 22, 1963

Naomi Glushakow DENENBERG
v.
The EMPLOYERS' LIABILITY ASSURANCE CORPORATION, Limited



The opinion of the court was delivered by: DUSEN

This case comes before the court on plaintiff's motion under Rule 12(f) of the Federal Rules of Civil Procedure to strike as insufficient the second, third and fourth defenses raised by defendant's Answer (Document 6).

 Plaintiff sought redress by means of a suit against the United States. In that action, the Court of Claims held that she failed to state a claim upon which the court could properly grant relief and that 5 U.S.C.A. §§ 150k and 150k-1 precluded liability of the United States of civilian employees of the Exchange. Denenberg v. United States, 305 F.2d 378 (Ct.Cl.1962).

 Plaintiff now brings suit in this court against the insurer and, as its second, third and fourth defenses, respectively, the insurer pleads (Document 6) that the action is barred by a six-year statute of limitations, that plaintiff fails to state a claim upon which relief may be granted, and that plaintiff's exclusive remedy exists under the Longshoremen's and Habor Workers' Compensation Act. Plaintiff moves the court to strike these defenses as insufficient under Rule 12(f).

 'A motion to strike a defense will be denied if the defense is sufficient as a matter of law or if it fairly presents a question of law or fact which the court ought to hear.' 2 Moore, Federal Practice, par. 12.21, citing Milkman v. Aetna Life Ins. Co., 36 F.Supp. 116 (E.D.N.Y.1941); Burke v. Mesta Mach. Co., 5 F.R.D. 134 (W.D.Pa.1946); Klages v. Cohen, 7 F.R.D. 216 (E.D.N.Y.1947).

 The defenses raised in the Answer are not, prima facie, frivolous. They may or may not have merit, but, at this point, it is enough to say that they are not so clearly insufficient that justice would be done by striking them in order to prune the pleadings. The statute of limitations defense is not so transparently devoid of merit as to bring it within the contemplation of Rule 12(f). The fourth defense, that plaintiff's exclusive remedy exists under the Longshoremen's and Harbor Workers' Compensation Act, raises problems the answers to which lie in analyzing a complex legislative scheme and history. The third defense, that plaintiff has failed to state a claim upon which relief may be granted, likewise may have merit. A question of jurisdiction is raised by these last two defenses in that this court apparently has no jurisdiction over this suit until plaintiff has sought a determination from a deputy commissioner appointed under the Longshoremen's and Harbor Workers' Compensation Act by the Secretary of Labor *fn1" (33 U.S.C.A. §§ 939 and 940). This court has been instructed to determine jurisdictional questions as early as possible in the litigation. See Berkowitz v. Philadelphia Chewing Gum Corporation, 303 F.2d 585 (3rd Cir. 1962).

 The record fails to disclose that plaintiff has made any attempt to pursue her remedy through administrative channels. It appears from P.L. 397, 82nd Cong., supra, that an administrative determination of the amount payable to plaintiff, if any, was contemplated. Section 2 provides:

 The legislative history of the 1958 amendment to the above-mentioned P.L. 397 indicates that Congress intended the remedy in the first instance to be administrative, not judicial. The Committee on Post Office and Civil Service reported on H.R. 10504 as follows (House Report 1659, 85th Cong., 2nd Sess.):

 '* * * Public Law 397 * * * provides that civilian employees of such nonappropriated fund instrumentalities 'shall not be held and considered as employees of the United States for the purpose of * * * the Federal Employees' Compensation Act' (5 U.S.C. 751 et seq.). Ordinarily, employees not subject to the Federal Employees' Compensation Act may have their compensation claims determined by the compensation commissions of the several States, and such procedure for determination of the compensation claims of employees of Armed Forces nonappropriated fund instrumentalities was contemplated when Public Law 397 was enacted. The compensation commissions of the various States have declined jurisdiction of the claims for compensation for death or disability of these nonappropriated fund instrumentality personnel because -- notwithstanding the provision in Public Law 397 that they are not employees of the United States for the purpose of the Federal Employees' Compensation Act -- they nevertheless are employed by instrumentalities of the Federal Government.

 'Thus, an inequitable situation has arisen wherein these employees (and their survivors, in cases of death) find themselves without the contemplated means for independent final adjudication of their compensation claims. Under such circumstances, therefore, the full intent of the Congress as embodied in Public Law 397 has not been carried out, to the extent that certain claimants have been left more or less at the mercy of negotiating with adverse parties for settlement of their claims.

 'H.R. 10504 will correct this situation by providing for final adjudication of these claims by judicial tribunals established by the Secretary of Labor pursuant to the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 901-950).' (Emphasis supplied.)

 Since Congress could not have anticipated that an employee located in London, England, would have secured an administrative determination from a State compensation commission, it would seem that they anticipated such an employee would secure his administrative decision from the comparable Federal agency, namely, the deputy commissioner specified in the Longshoremen's and Harbor Workers' Compensation Act, which was specifically mentioned in the 1952 Act as noted above. *fn2"

 The Longshoremen's and Harbor Workers' Compensation Act, §§ 7, 8 an d 9, now codified as 33 U.S.C.A. §§ ...


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