injury action. The Texas Workmen's Compensation Act provides:
'* * * If compensation be claimed under this law by the injured employe or his legal beneficiaries, then the association (the workmen's compensation insurance carrier) shall be subrogated to the rights of the injured employe in so far as may be necessary and may enforce in the name of the injured employe or of his legal beneficiaries or in its own named and for the joint used and benefit of said employe or beneficiaries and the association the liability of said other person, and in case the association recovers a sum greater than that paid or assumed by the association to the employe or his legal beneficiaries, together with a reasonable cost of enforcing such liability, which shall be determined by the court trying the case, then out of the sum so recovered the association shall reimburse itself and pay said cost and the excess so recovered shall be paid to the injured employe or his beneficiaries. The association shall not have the right to adjust or compromise such liability against such third person without notice to the injured employe or his beneficiaries and the approval of the board upon a hearing thereof.' Vernon's Ann.Civ.St. (Texas), Art. 8307, Sec. 6a.
This cause of action which this statute creates in favor of the workmen's compensation insurance carrier, to reimburse
the carrier for what it may be required to pay because of the negligence of a third party, is somewhat different from a cause of action on the part of an employe to recover for personal injuries from a third party.
It has been decided by the Texas courts that the period of limitation against the cause of action which this statute gives to workmen's compensation insurance carriers, does not begin to run until there is a settlement of the workmen's compensation liability or a final adjudication of the claim for workmen's compensation. Fidelity Union Casualty Co. v. Texas Power & Light Co., Tex.Civ.App.1931, 35 S.W.2d 782, writ refused; Buss v. Robinson, Tex.Civ.App.1952, 255 S.W.2d 339.
There is no Pennsylvania statute of limitations which limits an insurance carrier's right to sue for reimbursement to a period of two years from the date of an accident in which its insured has been involved. It is in this respect that the present case differs from the case of Wells v. Simonds Abrasive Co., supra, note 3, on which defendant strongly relies.
It being clear that the intervening plaintiff (Texas Employers' Insurance Association, the workmen's compensation insurance carrier) has a cause of action which is not barred by a statute of limitations, the motion to strike the defense of the statute of limitations will be allowed as to the intervening plaintiff. Since it cannot be ascertained at the present time whether or not the recovery in the present case will exceed the amount of the workmen's compensation liability it is unnecessary at this time to decide the question of whether the plaintiff personally can recover anything in this action, that is, it is unnecessary at this time to decide whether or not recovery in the present action will be limited to the amount of the workmen's compensation liability 'together with a reasonable cost of enforcing such liability.'
The motion to strike the defense of the statute of limitations is allowed as to the cause of action of the intervening plaintiff. Action in reference to the motion to strike the defense of the statute of limitations on the cause of action of the individual plaintiff is deferred until the amount of recovery, if any, in the present action has been ascertained.