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United States v. Merrigan

decided: January 16, 1968.

UNITED STATES OF AMERICA, APPELLANT,
v.
JAMES F. MERRIGAN AND JAMES F. MERRIGAN, JR., DEFENDANTS AND THIRD-PARTY PLAINTIFFS, V. THOMAS J. MCKINNEY, THIRD-PARTY DEFENDANT



Hastie, Freedman and Van Dusen, Circuit Judges. Hastie, Circuit Judge (dissenting).

Author: Freedman

Opinion OF THE COURT

FREEDMAN, Circuit Judge.

This is an action by the United States of America under the Medical Care Recovery Act (76 Stat. 593, 42 U.S.C. §§ 2651-2653), to recover the reasonable value of hospital, medical and surgical care amounting to $4,641 furnished by the Veteran's Administration to a veteran injured as the result of defendant's negligence. The veteran had instituted his own action against the tortfeasor within six months after the government first furnished the medical care, and his action had already gone to trial and judgment before the government brought its action.*fn1 The district court granted defendant's motion for summary judgment and dismissed the government's action on the ground that its only remedy under the Act was intervention or joinder in the private action, a remedy that no longer was available.

The Medical Care Recovery Act was passed following a report by the Comptroller General of the substantial moneys expended by the government for medical care and treatment of persons injured by the negligence of others, which it was unable to recover from the tortfeasors under the decision in United States v. Standard Oil Company, 332 U.S. 301, 67 S. Ct. 1604, 91 L. Ed. 2067 (1947). The Supreme Court there denied the government's claim for the recovery of the value of medical care it furnished to a serviceman injured by the negligence of the defendant, saying that the decision to create such a liability was one for Congress to make as a matter of federal fiscal policy and not appropriate for judicial creation. 332 U.S. at 314-316, 67 S. Ct. 1604. The Court rejected the effort to sustain the government's claim under state-created doctrines of subrogation, on the ground that the claim was not one of subrogation but was essentially an independent claim not dependent on the rights of the injured serviceman. 332 U.S. at 304, n. 5, 67 S. Ct. 1604.

The principal section of the statute is § 2651. Subsection (a) creates a "right" in the United States "to recover" from the tortfeasor the value of medical care it has furnished the injured person and provides that the government shall be subrogated to any claim of the injured person against the tortfeasor to the extent of the value of the care and treatment it has furnished. Subsection (b) prescribes the procedure for enforcement of the government's right of recovery. Since our problem involves the construction of these provisions, we must set them out in full:

"§ 2651. Recovery by the United States.

"(a) Conditions; exceptions; persons liable; amount of recovery; subrogation; assignment.

"In any case in which the United States is authorized or required by law to furnish hospital, medical, surgical, or dental care and treatment (including prostheses and medical appliances) to a person who is injured or suffers a disease, after the effective date of this Act, under circumstances creating a tort liability upon some third person (other than or in addition to the United States and except employers of seamen treated under the provisions of section 249 of this title) to pay damages therefor, the United States shall have a right to recover from said third person the reasonable value of the care and treatment so furnished or to be furnished and shall, as to this right be subrogated to any right or claim that the injured or diseased person, his guardian, personal representative, estate, dependents, or survivors has against such third person to the extent of the reasonable value of the care and treatment so furnished or to be furnished. The head of the department or agency of the United States furnishing such care or treatment may also require the injured or diseased person, his guardian, personal representative, estate, dependents, or survivors, as appropriate, to assign his claim or cause of action against the third person to the extent of that right or claim.

"(b) Enforcement procedure; intervention; joinder of parties; State or Federal court proceedings.

"The United States may, to enforce such right, (1) intervene or join in any action or proceeding brought by the injured or diseased person, his guardian, personal representative, estate, dependents, or survivors, against the third person who is liable for the injury or disease; or (2) if such action or proceeding is not commenced within six months after the first day in which care and treatment is furnished by the United States in connection with the injury or disease involved, institute and prosecute legal proceedings against the third person who is liable for the injury or disease, in a State or Federal court, either alone (in its own name or in the name of the injured person, his guardian, personal representative, estate, dependents, or survivors) or in conjunction with the injured or diseased person, his guardian, personal representative, estate, dependents, or survivors."*fn2

Subsection (a) of the Medical Care Recovery Act unmistakably confers on the government what the congressional reports describe as an "independent right of recovery" from the tortfeasor of the reasonable value of the care and treatment it furnishes to the injured person.*fn3 What is involved here is the construction of the Act's remedial or procedural provisions. These are not to be construed strictly against the government, but rather in aid of the substantive right which the statute has created. See Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S. Ct. 379, 19 L. Ed. 2d 407 (1967). Congress did not intend to limit the primary right of recovery in specifying the right of subrogation in aid of it. This is inherent in the provision itself, for the grant of an equitable remedy of subrogation is not from its nature a limitation on a right of action. The legislative history of the Act explains why the provision for subrogation appears in subsection (a), instead of subsection (b) dealing with enforcement procedure, where it would be more appropriate. The inter-agency committee which drafted the original bill did not create an independent right of recovery in the government, but contented itself with meeting the Supreme Court's holding that without Congressional authorization the government had no right of subrogation, and left the dimensions of that right dependent upon state law doctrines of subrogation.*fn4 The bill was amended to confer on the government an independent right of action and to free its right of subrogation from the vagaries of state law. This was accomplished by adding immediately before the provision regarding subrogation in subsection (a) a new provision that the United States "shall have a right to recover from said third person the reasonable value of the care and treatment so furnished". The right of recovery was thus conferred on the government and subrogation was made one of the remedial consequences of the government's right, a subsidiary equitable remedy, which did not limit the primary right.*fn5

The question then remains whether subsection (b), written in permissive rather than mandatory terms, cuts down the government's independent right of action established in subsection (a). The purpose cannot have been to destroy entirely the government's right to bring an independent suit. There is no contention that the right to sue does not clearly exist if the injured person fails to sue the tortfeasor within six months of his receipt of medical care, for the statute literally declares that in such a case the government may bring its action "alone", if it so chooses. Equally, the injured party who has waited beyond six months may still sue the tortfeasor even if in the interim the government has already brought its own action for its claim. The history of the statute as well as its provisions make it clear beyond question that it is not to be read as limiting in any manner the rights of the injured person against the tortfeasor.*fn6 If the government sues alone after six months have gone by, the injured person's action brought thereafter may run concurrently with it, for subsection (b) provides for that event, stating that after six months the government may sue "either alone * * * or in conjunction with the injured * * * person." This is no more than recognition of the realistic fact that a court would normally consolidate the two parallel actions involving the same defendant on a claim of liability for the same tortious act. Thus the fundamental purpose of subsection (b) must be something quite different from the prevention of the maintenance of two concurrent actions against the tortfeasor, one by the government for the recovery of the value of medical care and treatment it has furnished and the other by the injured person for the damages inflicted on him.

Similarly, there is no time limitation which restricts the government's right to intervene or join in a suit brought by the injured person, and thus it may become a party to his action even though he did not bring it until the six months had expired. It would be anomalous to say that although the government may intervene in his action brought within six months or after six months have gone by, it may not ...


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