RB&F COAL, INCORPORATED; OLD REPUBLIC INSURANCE COMPANY, Petitioners,
DELORIS J. MULLINS, o/b/o and Widow of Turl Mullins; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents.
Argued: September 21, 2016
Petition for Review of an Order of the Benefits Review Board.
Elliott Solomons, GREENBERG TRAURIG LLP, Washington, D.C.,
Victoria Susannah Herman, WOLFE WILLIAMS & REYNOLDS,
Norton, Virginia; Rebecca Jayne Fiebig, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondents.
Metcoff Klaus, GREENBERG TRAURIG LLP, Washington, D.C., for
E. Wolfe, WOLFE WILLIAMS & REYNOLDS, Norton, Virginia,
for Respondent Deloris Mullins. M. Patricia Smith, Solicitor
of Labor, Rae Ellen Frank James, Associate Solicitor, Sean G.
Bajkowski, Counsel for Appellate Litigation, Rita A. Roppolo,
Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondent Director, OWCP.
WILKINSON and FLOYD, Circuit Judges, and Irene M. KEELEY,
United States District Judge for the Northern District of
West Virginia, sitting by designation.
by published opinion. Judge Floyd wrote the opinion, in which
Judge Wilkinson and Judge Keeley joined
& F Coal Inc., and Old Republic Insurance Company
(collectively, "RB&F") seek relief from an
order of the Department of Labor's (DOL) Benefits Review
Board (BRB) holding RB&F responsible for the payment of
benefits to a coal miner, Turl Mullins, and survivor's
benefits to his widow, Deloris Mullins, under the Black Lung
Benefits Act, (BLBA), 30 U.S.C. § 901 et
seq. The parties agree that the
Mullins family is entitled to benefits. The only remaining
dispute is whether RB&F or another operator is liable for
the claim. We find that RB&F is liable, and therefore
affirm the decision of the BRB.
Before discussing the undisputed facts of this case, it is
helpful to understand the statutory schemes at issue. The
BLBA provides benefits to miners who are disabled by
pneumoconiosis. 30 U.S.C. §§ 901(a), 922(a),
932(c). The mine operator that employed the disabled miner is
liable for payment of those benefits. See id. §
932(b). In instances where a miner claiming benefits was
employed by multiple coal mine operators, the BLBA authorizes
the Secretary of Labor to promulgate regulations to establish
standards for apportioning liability among operators.
Id. § 932(h).
"responsible operator"--the operator ultimately
found liable for the BLBA claim--is the most recent company
to employ the miner, so long as that employer qualifies as a
"potentially liable operator." 20 C.F.R. §
725.495(a)(1). The regulation then outlines five criteria an
employer must satisfy in order to be a potentially liable
operator, only one of which is relevant to this case: the
operator and/or its insurer must be financially capable of
assuming liability. Id. § 725.494(e). Once a
miner files a claim, a DOL district director determines
whether any of the miner's previous employers qualify as
potentially liable operators. Id. § 725.407(a).
If one or more operators are considered potentially liable
operators, the district director names the potentially liable
operator that most recently employed the miner as the
"responsible operator." Id. §§
bears the initial burden of proving that the operator it
designates as responsible is a "potentially liable
operator" under § 725.494. Id. § 725.495(b). If the
responsible operator designated by the district director
believes that another party should be designated as the
responsible operator, that operator bears the burden of
proving that another operator more recently employed the
miner, and that the later employer meets the § 725.494
criteria. Id. § 725.495(c)(2).
Virginia Property and Casualty Insurance Guaranty Association
(VPCIGA), is a state chartered non-profit association
established by the legislature to "provide prompt
payment of covered claims to reduce financial loss to
claimants or policyholders resulting from the insolvency of
an insurer." Va. Code Ann. §
38.2-1600. All insurance companies that
conduct business in Virginia are required by state law to
join, and the association is funded by mandatory
contributions from those members. Id. §§
member insurer becomes insolvent, the VPCIGA takes on
liability for some, but not all, of its obligations. See
id. § 38.2-1606(A)(1). The VPCIGA is required to
pay "covered claims" as that term is defined in the
Guaranty Act. Id. In relevant part, the Guaranty Act
provides: "Notwithstanding any other provision of this
chapter, a covered claim shall not include any claim filed
with the [VPCIGA] after the final date set by the court for
the filing of claims against the liquidator or receiver of an
insolvent insurer." Id. §
Turning now to the facts of this appeal, Turl Mullins worked
as a coal miner for several years including stints with
RB&F between 1985 and 1986 and Wilder Coal
("Wilder") between 1986 and 1988. Mullins was diagnosed with pneumoconiosis
in 2009, and filed a claim for benefits under the BLBA in
that same year. As discussed above, under DOL regulations,
liability for those benefits falls to the mine operator that
most recently employed the miner for at least a year, so long
as that employer is financially capable of assuming liability
for the claim. 20 C.F.R. § 725.494. By the time Mullins
filed his claim, Wilder was out of business. Further, its
insurer, Rockwood Insurance Co. ("Rockwood"), a
member of the VPCIGA, had been declared insolvent by a
Pennsylvania court in August of 1991. See Boyd &
Stevenson Coal Co. v. Dir., Office of Workers' Comp.
Programs, 407 F.3d 663, 665 (4th Cir. 2005). Following
Rockwood's insolvency, the court appointed a liquidator
who set the final date for filing claims against Rockwood as
August 26, 1992. See Uninsured Employer's Fund v.
Mounts, 484 S.E.2d 140, 144 (Va.App. 1997),
aff'd, 497 S.E.2d 464 (Va. 1998). The VPCIGA
assumed responsibility for claims filed before that
date--i.e., "covered claims"--but not for claims
filed after that date. See id.; Va. Code Ann. §
district director found that Mullins was entitled to benefits
and that RB&F was the responsible operator. Contesting
its liability, RB&F requested that the case be
transferred to ...