Mendiola v. United States

• Decision Date: 11 October 1968
• Docket Number: No. 25127.,25127.
• Citation: 401 F.2d 695
• Parties: Celestino MENDIOLA, Jr., and Maryland Casualty Company, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

401 F.2d 695 (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.

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 begun¹ 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 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 rule laid down by the District Court in the Bizer case Bizer v. United States, D. C., 124 F.Supp. 949, supra. That rule, simply stated, is that federal law determines when the period of limitations contained in Section 2401(b) commences to run i. e., federal law determines when a "claims accrues" within the meaning of Section 2401(b), even though we look to state law to determine whether any claim has accrued against the Government which would enable the claimant to sue under the Tort Claims Act. (Brackets original)³

304 F.2d at 239. We reaffirmed Quinton in Beech v. United States, 5th Cir. 1965, 345 F.2d 872, 873:

This circuit has held, in accord with the majority of federal courts, that the accrual of the cause of action is governed by federal and not state law.

Both the Beech and Reid cases make it clear that, as a matter of federal law, where the injury coincides with the negligent act and some damage is discernible at the time, the two-year statute of limitations begins to run. See Beech v. United States, supra, 345 F.2d at 874; United States v. Reid, supra, 251 F.2d at 694. Thus, section 2401(b) began to run on Mendiola's claim against the United States when he sustained discernible injuries in 1963. That the Texas statute of limitations would have been tolled pending the termination of his workmen's compensation suit is irrelevant because section 2401(b) contains no such tolling provision and does not incorporate expressly or by implication tolling provisions under state law. In Simon v. United States, 5th Cir. 1957, 244 F.2d 703, this Court held, inter alia, that it could not read into section 2401(b) an exception not embodied therein, however reasonable such exception might seem. More to the point is Jones v. United States, D.D.C.1954, 126 F.Supp. 10, in which it was squarely held that a provision of New York law for tolling the statute of limitations was inapplicable to section 2401(b).⁴ The policy reason for not incorporating state tolling provisions into section 2401(b) was given by Judge Tuttle in Quinton when he explained why the accrual of a claim could not be a matter of state law:

Obviously, if the various states\' rules could severally determine when a claim accrued against the Government under Section 2401(b), the uniformity which Congress sought by enacting that section would be, for all practical purposes, a goal impossible of attainment. Differing state rules as to when a tort claim accrues would necessarily produce diverse decisions as to the effect of Section 2401(b). The mere alteration by a state of its rule as to the accrual of a particular claim would alter Section 2401(b) just as effectively as if Congress itself had formally amended that section.

304 F.2d at 236. The incorporation of diverse state tolling provisions into section 2401(b) would undermine the uniform application of the two-year period for filing suit just as effectively as would incorporation of state laws for the accrual of a cause of action.⁵

As a matter of federal law, then, Mendiola's claim against the United States accrued in 1963 and expired in 1965. The tolling provision under Texas law did not prevent the running of section 2401(b). Appellant Maryland Casualty stands in no better position than Mendiola because under Texas law it was subrogated to the rights of Mendiola and, by definition, could not assert any right or privilege which he could not assert.⁶ The judgment dismissing the action is affirmed.

1 The provision cited above has been amended, see Public Law 89-506, 80 Stat. 307, but the amendment applies only to claims accruing six months or more after the date of enactment, July 18, 1966. In this case, the claim accrued in 1963 according to appellee and in 1965 according to appellants.

2 Tex.Rev.Civ.Ann. art. 8307, § 6a (1925) provides that the injured employee may at his option proceed against the negligent tortfeasor or the insurance carrier. If he proceeds first against the insurance carrier, the carrier is subrogated to his rights against the tortfeasor:

Where the...