United States Lines, Inc. v. United States

• Decision Date: 12 December 1972
• Docket Number: No. 72-2055.,72-2055.
• Citation: 470 F.2d 487
• Parties: UNITED STATES LINES, INC., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

470 F.2d 487 (1972)

UNITED STATES LINES, INC., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 72-2055.

United States Court of Appeals, Fifth Circuit.

December 12, 1972.

R. Jackson B. Smith, Jr., U.S. Atty., Augusta, Ga., Lamar C. Walter, Asst. U.S. Atty., Savannah, Ga., for defendant-appellant.

Gustave R. Dubus, III, George H. Chamlee, Savannah, Ga., for plaintiff-appellee.

Before TUTTLE, WISDOM and SIMPSON, Circuit Judges.

PER CURIAM:

This is an appeal by the United States from an interlocutory order by the trial court granting a motion of United States Lines, Inc., to strike two defenses urged by the United States to a complaint filed by United States Lines, Inc. for "full or partial indemnity or contribution for the amounts . . . paid in settlement of the claim of Everett F. Campbell against plaintiff United States Lines, Inc. and all or part of the maintenance and cure payments made by the plaintiff." These two defenses are (1) the failure of the complaint to allege facts upon which relief could be granted, and (2) the statute of limitations.

We have carefully considered the opinion of the trial court supporting its order striking these defenses. Concluding as we do, that this opinion accurately and succinctly states the legal principles controlling such a suit, we adopt the order of the trial court as the judgment of this court. Since the judgment of the trial court is not published, we appended it hereto as an exhibit to this opinion.

The order of the trial court is affirmed.

APPENDIX

ORDER ON MOTIONS TO STRIKE DEFENSES

(Filed April 21, 1972)

In this Federal Torts Claim case United States Lines, Inc. sues the Government for contribution and indemnity, in whole or part, for the amount it paid in the settlement of a suit against it by an injured seaman. The injuries were received aboard the S.S. "American Reporter" in 1966 when the seaman, Everett F. Campbell, fell after tripping on deck cargo lashings.

He thereafter filed an action for damages in admiralty in the United States District Court for the Eastern District of Pennsylvania. The defendant, United States Lines, Inc., brought a third-party action against the United States for full or partial indemnity or contribution in the event of an adverse judgment. The claim was based on the theory of negligence of the United States Public Health Service in failing to furnish competent doctors and technicians and its failure to give competent treatment to the plaintiff following his injury. The third-party action was dismissed by the District Court in 1968 because of lack of venue. Subsequently, defendant's motion to transfer the action to this Court under § 1404(a) was denied.¹

At a pretrial conference in 1969 the case was fully reviewed before the District Judge. He recommended settlement in the amount of $180,000 and the parties agreed to settle for that sum. Judgment was entered on March 19, 1970, in favor of Campbell against United States Lines and was later marked "satisfied of record." A release was executed by the plaintiff.

The action for contribution or indemnity against the United States under the Federal Tort Claims Act was filed in this Court on September 17, 1971. The plaintiff has moved to strike the four defenses pleaded by the Government, namely, (1) failure to state a claim for relief; (2) lack of venue; (3) bar of the statute of limitations and (4) the contention that the release signed by Campbell included the United States by reason of the inclusion among released persons of "United States Department of Commerce Maritime Administration."

The motions have been orally argued and briefed. The matter of venue, the statute of limitations and the question of the release can be readily disposed of.

The venue of actions under the Tort Claims statute is "where the plaintiff resides or wherein the act or omission complained of occurred." 28 U.S.C.A. § 1402(b). The alleged negligence by the government physicians took place at Savannah.

Provided there exists a right to contribution or indemnity, the applicable two-year statute of limitations (28 U.S.C.A. § 2401(b)) does not run from the date of injury but from the time the right to contribution or indemnity accrued, namely, date of payment to the seaman which was in March, 1970. See 54 C.J.S. Limitations of Actions § 160; Kantlehner v. United States, D.C., 279 F.Supp. 122; Keleket X-Ray Corporation v. United States, 107 U.S.App.D.C. 138, 275 F.2d 167; States Steamship Company v. American Smelting & Refining Company, 339 F.2d 66 (9 Cir.).

The release executed by Campbell named the United States Department of Commerce Maritime Commission as a releasee. It is contended by the government that the inclusion of that agency results in the release of the United States, as principal. The Georgia rule that the release of one tortfeasor is a release as to all does not extend to a physician who is negligent in the subsequent treatment of the injury, at least in the absence of intent of the parties. Knight v. Lowery, 228 Ga. 452, 185 S.E.2d 915. The Maritime Commission had nothing to do with the malpractice aspect of the case. The release of that agency does not operate to release the United States for the negligence of the Public Health Service, Department of Health, Education, and Welfare and its physicians and agents. Neither the Commission, the Public Health Service nor the United States contributed to the settlement.

The motion to strike the Second, Third and Fourth defenses is granted.

The First Defense, that is, failure to state a claim on which relief can be granted, is an entirely different matter. The motion presents exceedingly difficult problems. The government contends that there is no right to contribution since United States Lines and the Public Health Service and physicians were not joint tortfeasors. It urges that there is no basis for indemnity. If subrogation is involved, it argues that the assignee of the malpractice claim takes same subject to all defenses, including the bar of the statute of limitations.

The right to indemnity or contribution under the Federal Tort Claims Act is governed by state law. 28 U.S.C.A. §§ 1346(b), 2674; Traveler's Insurance Company v. United States, D.C., 283 F.Supp. 14, 19; Williams v. United States, 352 F.2d 477 (5 Cir.); Elliott v. United States, D.C., 329 F.Supp. 621.

If this were a case of joint tortfeasorship, United States Lines would seem, under Georgia law, to be entitled to partial contribution provided its proof substantiated the claim as to malpractice by the Public Health Service.² The consent judgment in Pennsylvania has the same effect as an involuntary judgment (Estes v. Estes, 192 Ga. 94, 96, 14 S.E.2d 681; Reynolds v. Southern Railway Company, D.C., 320 F.Supp. 1141, 1144).³ It probably satisfies the recent rulings by the Court of Appeals of Georgia to the effect that the right of contribution under Ga.Code Ann. § 105-2012 requires a judgment being obtained against the person seeking contribution from one who may be jointly liable. Hangar Cab Company, Inc. v. City of Atlanta et al., 122 Ga.App. 661, 178 S.E.2d 292; Hospital Authority of Emanuel County v. Gray, 123 Ga.App. 415, 181 S.E.2d 299. See also Thornhill v. Bullock, 118 Ga.App. 186, 188, 162 S.E.2d 886; Southern Nitrogen Company v. Stevens Shipping Company, 114 Ga.App. 581, 151 S.E.2d 916. Cf. Reynolds v. Southern Railway Company, supra.

United States Lines relies heavily on Penn Tanker Company v. United States, 409 F.2d 514, a Fifth Circuit case from Texas. The facts are strikingly similar to those in the case now before this Court. In that case a seaman received an injury aboard ship. He was admitted to the United States Public Health Service in Galveston. As a result of malpractice by a government surgeon, he lost an eye. Litigation by the seaman against the shipowner in a Texas court resulted in a settlement and consent judgment. Thereafter, Penn Tanker sued the United States under the Federal Tort Claims Act for the amount it had paid to the plaintiff and 50% thereof was awarded as indemnity. The Fifth Circuit Court of Appeals held (p. 520):

"There can be no doubt that Penn Tanker was under a legal obligation to pay Hodges and that the Government would have been liable to Hodges had he sued it. It is undisputed that Penn Tanker had no control or direction over Hodges (other than to furnish him with a Master\'s Certificate for treatment at a Service facility). Penn Tanker had no part in the selection of the hospital or the treating physician and was not even aware of Hodges\' decision to submit to eye surgery. It had not the slightest opportunity to protect itself against the Government\'s negligence. A more equitable consideration could hardly be presented. Nor do we perceive any difficulty in the allocution of burdens between Penn Tanker and the Government whose liability is isolable. Of course, Penn Tanker cannot pass on its liability for damages to Hodges which would have occurred without the maltreatment by the Service facility\'s doctor or, conversely, the Government cannot be liable to Penn Tanker for more damages than would have been assessed against it in a direct suit by Hodges . . . ."

The Court further said (p. 520) that when Penn Tanker paid the injured seaman damages for which it was liable even though resulting from the negligent aggravation of the injury during medical treatment "it became an assignee by operation of law".

While Penn Tanker is persuasive, Georgia law controls. Under it, I conceive that the right of contribution is not applicable for the reason that the United States Public Health Service and the shipowner were not joint tortfeasors. The parties did not act in concert so as to produce a single injury. There were two separate, non-concurrent wrongs, the injury received aboard ship at sea and the alleged aggravation by government physicians in the treatment thereof. Neither of the parties to this...