Service Engineering Company, and Majestic Insurance Company v. Sherman A. Emery

Service Engineering Company (“Service”) and Majestic Insurance Company (“Majestic”) brought a claim seeking a declaration that California workers’ compensation benefits are preempted when a claimant forfeits his benefits under the federal Longshore and Harbor Workers Compensation Act (“LHWCA”), 33 U.S.C. § 901 et seq., for failure to obtain employer approval prior to settlement of a third-party civil suit. The district court dismissed the action for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). The district court had jurisdiction because preemption is a federal question under 28 U.S.C. § 1331 . This court has jurisdiction under 28 U.S.C. § 1291 because a successful motion to dismiss is a final decision. We affirm.

I

Procedural Background

Sherman Emery is a former employee of Service, a corporation engaged in ship repair. Majestic is the workers’ compensation insurance carrier for Service. Emery suffered injuries arising from exposure to asbestos in the course of his employment at Service or for other companies.

Emery filed three separate actions in conjunction with his asbestos injury. On March 16, 1992, he filed a claim under the LHWCA…