401 F.2d 695 (5th Cir. 1968), 25127, Mendiola v. United States

Docket Nº:25127.
Citation:401 F.2d 695
Party Name:Celestino MENDIOLA, Jr., and Maryland Casualty Company, Appellants, v. UNITED STATES of America, Appellee.
Case Date:October 11, 1968
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 695

401 F.2d 695 (5th Cir. 1968)

Celestino MENDIOLA, Jr., and Maryland Casualty Company, Appellants,

v.

UNITED STATES of America, Appellee.

No. 25127.

United States Court of Appeals, Fifth Circuit.

October 11, 1968

Page 696

Harold D. Putman, Putman & Putman, San Antonio, Tex., for appellant Celestino Mendiola, Jr.

Roy C. Brock, House, Mercer, House & Brock, San Antonio, Tex., for appellant Maryland Cas. Co.

William B. Butler, Asst. U.S. Atty., Morton L. Susman, U.S. Atty., James R. Gough, Asst. U.S. Atty., Houston, Tex., for appellee.

Before THORNBERRY and SIMPSON, Circuit Judges, and ATKINS, District Judge. THORNBERRY, Circuit Judge.

On January 11, 1967, Appellant Celestino Mendiola filed a Federal Tort Claims suit against the United States to recover damages for personal injuries sustained on February 27, 1963. The complaint alleged that a workmen's compensation suit against Maryland Casualty Company was finalized on March 16, 1965. Subsequently, Appellant Maryland Casualty intervened to assert subrogation rights to amounts paid to Mendiola under the Texas Workmen's Compensation Act. The court below granted the Government's motion to dismiss on the ground that the action was barred by a provision of 28 U.S.C. § 2401(b) that

A tort claim against the United States shall be forever barred unless action is begun 1 within two years after such claim accrues.

Appellants' contention is that section 2401(b) does not bar their action because Mendiola filed his complaint within two years after March 16, 1965, the date of the judgment terminating his workmen's compensation suit against Maryland Casualty. Having examined this argument, we find ourselves in agreement with the district court that the claim accrued on February 27, 1963 and expired two years thereafter.

Appellants argue from Texas law that the cause of action against the United States did not 'accrue' within the meaning of 28 U.S.C. § 2401(b) until 1965 when the workmen's compensation suit was finalized. When an injured party elects to proceed initially against his employer's compensation carrier rather than at law against the negligent tortfeasor, the running of the Texas statute of limitations on the action at law is tolled pending the outcome of the workmen's compensation suit. 2

Page 697

Moreover, appellants contend, when the injured employee proceeds initially against his employer's insurance carrier, the cause of action against the negligent tortfeasor does not 'accrue' under Texas law until the workmen's compensation suit is finally determined. Thus, they urge, under Texas law Mendiola's action at law would not have accrued until March 16, 1965 and should not be deemed to have accrued under 28 U.S.C. § 2401(b) until then. Whether this analysis of Texas law be precisely accurate or not, it must be recognized that the accrual of a cause of action under section 2401(b) is a matter of federal law. This Court so held in Quinton v. United States, 5th Cir. 1962, 304 F.2d 234, clarifying the earlier case of United States v. Reid, 5th Cir. 1958, 251 F.2d 691:

It seems clear that this Court, in the Reid case, merely adopted the...

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