United States v. State Road Department of Florida

• Decision Date: 26 July 1951
• Docket Number: No. 13213.,13213.
• Parties: UNITED STATES v. STATE ROAD DEPARTMENT OF FLORIDA et al.
• Court: U.S. Court of Appeals — Fifth Circuit

189 F.2d 591 (1951)

UNITED STATES v. STATE ROAD DEPARTMENT OF FLORIDA et al.

No. 13213.

United States Court of Appeals Fifth Circuit.

May 30, 1951.

Rehearing Denied July 26, 1951.

Cody Fowler, William A. Gillen, Tampa, Fla., George Earl Hoffman, U. S. Atty., Pensacola, Fla., for appellant.

John W. McWhirter, Atty. State Rd. Dept. of Fla., Tampa, Fla., T. Paine Kelly, Asst. Atty. Gen., Tallahassee, Fla., J. McHenry Jones, Pensacola, Fla., for appellees.

Before HOLMES, BORAH and RUSSELL, Circuit Judges.

RUSSELL, Circuit Judge.

This suit, in the trial court was brought under the Federal Tort Claims Act¹ by the State Road Department of the State of Florida against the United States of America to recover damages resulting from the partial destruction of, and damage to, the Thomas A. Jefferson Bridge across Pensacola Bay, Escambia County, Florida, caused when the bridge was struck by four liberty ships of the government during a severe rain and wind squall in Pensacola Harbor, where the ships were anchored.

In its answer the United States denied its negligence, and asserted separate defenses. The eleventh defense denied the right of the plaintiff to recover in any event the cost of constructing and removing two wooden temporary detour bridges at and around the damaged and destroyed portions of the bridge, constructed for the purpose of opening the bridge to traffic while the bridge was being repaired. Following the receipt of answer to interrogatories propounded by the defendant by which it was shown that the Road Department had carried a policy of insurance upon the bridge and had been partially reimbursed by the Aetna Insurance Company of Hartford, Connecticut, the United States by its twelfth defense denied the right of the Road Department to maintain the suit and further asserted that the insurance carrier became subrogated to any claim of the Road Department to the extent of the sum of $215,000.00 paid as insurance; that suit for this sum must be brought by the insurance carrier as subrogee in its own name as the real party in interest, and that the insured and paid Road Department was not entitled to sue for this sum. The defendant also set up additional defenses which in the present posture of the case it is not necessary to relate.² Upon the plaintiff's motion the Court struck the eleventh and twelfth defense. Thereafter the United States, alleging the existence and payment of insurance as set forth in the twelfth defense and asserting the right of subrogation of the insurance carrier and its right to participate in any recovery from the defendant to the extent of the payment made, and that the Road Department and the insurance carrier "are the real parties in interest in this suit," and under the law of Florida "are authorized jointly to sue the defendant to recover for the alleged damage to the bridge," moved that the insurer be made a party plaintiff to the suit. In answer to the motion plaintiff asserted that the right of the insurance carrier to be reimbursed out of any recovery of damages was a question only between the plaintiff and its insurance carrier which would be adjusted between the parties after the judgment, if any was recovered, and that the right of recovery of the entire damage vested in the plaintiff and therefore the insurance carrier was not an indispensable party plaintiff, nor the real party in interest. It was prayed that if any order be entered making the insurance carrier a party plaintiff that the joinder be required "solely in order that all parties for whose benefit the action is being prosecuted by the State Road Department shall appear of record as parties to the cause." The Court, reciting the existence of the right of subrogation on the part of the insurance carrier and that its joinder would in no way prejudice either the plaintiff or insurance carrier, directed that the insurance carrier should join as a party plaintiff "so that all parties for whose benefit the action is being prosecuted shall appear of record as parties in this cause." The insurance carrier thereafter filed a formal joinder expressly pursuant to the order of the Court and adopted the pleadings of the plaintiff. Thereafter the defendant filed answer and defenses to the same effect as theretofore filed to the complaint and asserted the additional defense that the claim of the subrogee was barred because it had not instituted or joined in the suit within one year after August 2, 1946 as required by the provisions of the Federal Tort Claims Act.³

The trial of the case was had before the late United States Circuit Judge Curtis L. Waller of this Court, sitting by designation as United States District Judge. The facts and circumstances of the case were fully developed as is shown by consideration of the lengthy transcript of record now before us. His Honor, Judge Waller, entered detailed findings of fact and conclusions of law adjudging the defendant negligent and overruling its defenses of inevitable accident and "Act of God" and awarded the plaintiff judgment in the amounts of damages stipulated to be proper if recovery for the items claimed was allowed. These findings and conclusions are published in State Road Department of Florida v. United States, D.C., 85 F.Supp. 489. The judgment was for the cost of repairing the permanent bridge $233,211.19, and for the cost of constructing and removing the temporary detour bridges $128,426.39. The total judgment awarded the Road Department of the State of Florida damages in the amount of $361,637.58. It was further ordered and adjudged that the co-plaintiff insurance carrier was entitled, as subrogee, to receive from the said State Road Department the sum of $215,000.00 out of the proceeds of the judgment. Provision for the payment of attorneys' fees was also made.

By this appeal three specifications of error are presented by the United States. It is contended first, that the trial court erroneously imposed upon the masters and other officers in charge of the vessels involved prior to and during the squall in which the vessels dragged anchor and collided with the bridge a standard of exercising a very high or extra-ordinary degree of care; second, that Aetna's claim as a plaintiff was barred by the limitation of the Federal Tort Claims Act, supra, and, third, that the cost of constructing and removing the two temporary detour wooden bridges was not an element of damage recoverable by the Road Department. We have intentionally refrained from repeating in detail the findings of fact and conclusions of law reached by the learned Judge sitting as U. S. District Judge designate. They fully appear in the published report appearing in 85 F.Supp. 489. Reference thereto will afford full understanding of all material facts and circumstances of the case and conclusions of law announced. These we approve in substance.

The first specification of error of the appellant assumes, we think, the application by the trial judge of a standard of care which is not supported when the findings of fact and conclusions of law are considered as a whole. The specification is predicated upon isolated statements appearing in the Court's discussion.⁴ We are convinced from a consideration of the opinion of the Court as a whole that the judgment against the defendant-appellant resulted from no misapplication of law to the facts found by the Court. While some language of the Court may be such as to give grounds for argument upon appeal, we think that consideration of the determination of the Court as a whole demonstrates that such argument is not valid and should be rejected.

It appears from the record that the defense that the claim of the subrogee was barred by the limitations in the Federal Tort Claims Act, supra, had been determined upon motion prior to the trial. It is to the effect of this ruling that the second specification of error is directed. In brief, the contention is that since there were two "real parties in interest" and only one of them filed a timely suit the other is barred. Thus to support its position it was necessary for the appellant to bring into the litigation the additional "real party in interest" and assign to it an independent claim in order to invoke the bar of the Federal Tort Claims Act. Since the Road Department had not been fully reimbursed for its damages even to the main bridge structure, it was in any event entitled to assert a claim and in fact had done so, — prosecuting suit for the full amount. In these circumstances the question could in no event be broader than one of proper parties. The claim had been timely asserted. Determination of whether other additional parties were entitled or indeed required to join in the suit was a matter distinct from the question of whether an action by one party, likewise entitled to sue, had been begun within the permitted time. In the present case there was only one foundation claim. That was for the damage to the bridge. This was the cause of action. The defendant had the right to bring in the subrogee as an additional party,⁵ but when brought in the subrogee had an equitable right to reimbursement, which could be enforced only by establishing the same claim, or cause of action, of the Road Department. This had been timely filed, and was a sufficient and timely assertion of the claim for the entire damages.⁶ It is therefore clear that the fact that the subrogee was entitled to participate in the proceeds of the judgment when recovered furnishes no valid ground for adjudging this amount of the total recovery barred by the provisions of the statute.

That portion of the complaint which sought recovery of the cost of constructing and removing the temporary wooden bridges around those portions of the permanent bridge that was damaged by the defendant is predicated upon the obligation of the...