Fink v. Dimick, Civ. A. No. 6965.

• Decision Date: 28 May 1959
• Docket Number: Civ. A. No. 6965.
• Parties: Everett F. FINK, Plaintiff, v. William C. DIMICK, Defendant, United States of America, Intervenor.
• Court: U.S. District Court — District of Connecticut

179 F. Supp. 354

Everett F. FINK, Plaintiff, v. William C. DIMICK, Defendant, United States of America, Intervenor.

Civ. A. No. 6965.

United States District Court D. Connecticut.

May 28, 1959.

Jerome E. Caplan of Rogin, Nassau & Caplan, Hartford, Conn., for plaintiff.

Robert Satter, Hartford, Conn., for defendant Dimick.

Harry W. Hultgren, U.S. Atty., Henry C. Stone, Asst. U. S. Atty., Hartford, Conn., for intervenor U. S.

J. JOSEPH SMITH, Chief Judge.

In this action of interpleader each of the two claimants has filed a motion for summary judgment. Rule 56, F.R.Civ. P., 28 U.S.C. The facts necessary to a decision have been stipulated by the parties and there are no genuine issues as to any material facts.

On May 4, 1953, defendant William Dimick was employed by the United States as an Inspection Engineer at the Springfield Ordnance District, Springfield, Massachusetts. On that date Dimick was officially assigned by the Ordnance District to inspect Plant D of the International Silver Company at Meriden, Connecticut. While in the course of this inspection Dimick sustained back injuries as a result of being struck by forgings falling from a table located in the International Silver plant. As a consequence of these injuries, Dimick incurred expenses for medical care, hospitalization and surgery, and sustained a loss of wages. Within one year of the date of this injury, Dimick filed a claim for compensation with the United States Department of Labor under the Federal Employees' Compensation Act. The injuries sustained by him were found to be compensable and the United States, through its Bureau of Employees' Compensation, has paid Dimick compensation in the amount of $2,130.30 for medical payments and wage losses resulting from the accident, under the provisions of the Act.

On or about August 1, 1953, in order to obtain recompense for his injuries, Dimick retained a Bridgeport, Connecticut attorney to institute suit against the International Silver Company. This attorney failed to bring suit within one year following the date of the accident, with the result that Dimick's personal injury claim against International Silver was barred by the Connecticut one year Statute of Limitations. International Silver declined to waive the bar thus imposed to a suit against it by Dimick.

During the one year period following the accident no request was made by the United States of Dimick to prosecute his personal injury action against International Silver or to assign his claim against International Silver to the United States, as provided in the Act.

After the Bridgeport attorney had allowed the statute of limitations to run, Dimick retained Everett Fink, the plaintiff herein, an attorney, to institute suit against the Bridgeport attorney for malpractice. During the trial of that action, the claim of Dimick against his former attorney was settled for a sum in excess of the $2,130.30 paid to Dimick by the United States as compensation. The United States, acting initially through its Secretary of Labor, James Mitchell, demanded the sum of $2,130.30 from the plaintiff, basing its demand on certain provisions of the Federal Employees' Compensation Act. Dimick demanded the entire fund as money due him from the settlement. Since plaintiff claimed no interest in the fund and was nothing more than a stakeholder, but might be subject to double liability in the event of payment to the wrong party, he instituted this action of interpleader under 28 U.S.C. § 1335, naming Dimick and James Mitchell as the adverse claimants of diverse citizenship to a fund in excess of $500 required by that section, and paying the fund of $2,130.30 into the Registry of this court. Thereafter the United States was granted permission to intervene as a claimant to the fund, on the basis that it, rather than the Secretary of Labor, was the proper party to claim the fund under the particular statutory provisions involved. On motion by the Secretary he was dismissed from the action, leaving Dimick and the United States as the adverse claimants.

Although the defendants as they now stand do not satisfy the requirements of Section 1335 that the adverse claimants be of diverse citizenship, we are satisfied that the court still has jurisdiction of the action. Jurisdiction under Section 1335 originally existed because the defendant Dimick was a citizen of Connecticut while the defendant Mitchell was a citizen of the District of Columbia. If the subsequent change in claimants defeated this source of jurisdiction, it introduced another and thus cured any lack that might have occurred. For with the fund paid into court, plaintiff Fink has been substantially removed from this litigation, although he is still the nominal plaintiff, and the real and only contestants as the case now stands are the United States and Dimick. The petition of intervention of the United States is, in essence, a claim of the United States against Dimick. Thus the United States really occupies the position of a plaintiff here, although denominated a defendant. Under 28 U.S.C. § 1345, a United States District Court has original jurisdiction of all civil actions, suits or proceedings commenced by the United States. In effect such a civil action is what the court now has before it. So whether the source be Section 1335 or Section 1345, we hold that the court has jurisdiction to render a summary judgment in this matter.

The Federal Employees' Compensation Act, 5 U.S.C.A. § 751 et seq., provides a comprehensive scheme for the payment of compensation by the United States in the event of the disability or death of one of its employees resulting from a personal injury sustained while in the performance of his duty. Like most workmen's compensation laws, it allows compensation to the injured employee even where a third party has caused the injury to the employee. 2 Larson, Workmen's Compensation Law (1952) Sec. 71.00, p. 165. And again like most such laws, where a third party has caused the injury and compensation is paid, there are provisions in the law which give the payer of compensation a right of subrogation of the injured party's claim against the third party wrongdoer, or a right of reimbursement for compensation paid out of any judgment or settlement the injured party may effect with the third party wrongdoer. The pertinent sections of the Act here involved are as follows:

5 U.S.C.A. § 776. "Subrogation of United States to employee's right of action; assignment by employee; disposition of moneys collected from person liable. If an injury or death for which compensation is payable under this chapter is caused under circumstances creating a legal liability upon some person other than the United States to pay damages therefor, the commission may require the beneficiary to assign to the United States any right of action he may have to enforce such liability of such other person or any right which he may have to share in any money or other property received in satisfaction of such liability of such other person, or the commission may require said beneficiary to prosecute said action in his own name.

"If the beneficiary shall refuse to make such assignment or to prosecute said action in his own name when required by the commission, he shall not be entitled to any compensation under this chapter.

"The cause of action when assigned to the United States may be prosecuted or compromised by the commission, and if the commission realizes upon such cause of action, it shall apply the money or other property so received in the following manner: After deducting the amount of any compensation already paid to the beneficiary and the expense of such realization or collection, which sum shall be placed to the credit of the employees' compensation fund, the surplus, if any, shall be paid to the beneficiary and credited upon any future payments of compensation payable to him on account of the same injury."

5 U.S.C.A. § 777. "Adjustment in case of receipt by employee of money or property in satisfaction of liability of third person. If an injury or death for which compensation is payable under this chapter is caused under circumstances creating a legal liability in some person other than the United States to pay damages therefor, and a beneficiary entitled to compensation from the United States for such injury or death receives, as a result of a suit brought by him or on his

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