Walker P. Johnson, Jr., Asst. U.S. Atty., Macon, Ga., Morton Hollander, Howard J. Kashner, Attys., Dept. of Justice, Washington, D.C., for appellant.

W. G. Scrantom, Jr., Max R. McGlamry, Columbus, Ga., for appellee.

Before BROWN, Chief Judge, SIMPSON, Circuit Judge, and SUTTLE, district judge.

SUTTLE, District Judge:

This suit was brought by the United States under the Medical Care Recovery Act, 76 Stat. 593 (1962), 42 U.S.C.A. 2651-2653 (1964),1 to recover from the defendant the reasonable value of medical care which the United States furnished a victim of the defendant's allegedly tortious conduct. The complaint, filed on January 6, 1966, alleged that the defendant, appellee here, negligently injured one Ernest Lucero on June 3, 1963, and that the value of the medical services furnished by the United States to Mr. Lucero as a result of this injury is $4,964. third person the reasonable value of to dismiss, contending that the federal claim under the Medical Care Recovery Act, supra, was barred by Georgia's two-year statute of limitation for personal injury actions.2 The lower court granted defendant's motion to dismiss and held that the Act did 'no more than place the United States in the position of the injured person so that any action by the United States would be subject to the same (state-law) defenses that could be asserted by the alleged tort-feasor against the injured person.'3 The United States contends that in this the court below was in error, arguing that the Medical Care Recovery Act, supra, gives the United States an independent right, not subject to state statutes of limitation, to recover against tortiously liable third persons for the reasonable value of medical and hospital expenses. Both parties thus agree that the question of whether Georgia's statute of limitation bars the present action depends upon whether the claim

/2/ Ga.Code Ann. 3-1004 provides in part: one or is rather 'derivative' and 'secondary' to the claim of the person actually injured, and hence subject to accrues * * *.'

An alternative ground for dismissal of

The Medical Care Recovery Act, supra, was Congress's belated response to the result reached in United States v. Standard Oil of California, 332 U.S. 301, 67 S. Ct. 1604, 91 L. Ed. 2067 (1947), in which the United States sought to recover the cost of hospitalization and pay expended by it as the result of the injury of a soldier hit by a truck negligently operated by the defendant. The United States Supreme Court denied recovery and indicated that it was the function and responsibility of Congress to impose such a liability on tort-feasors to reimburse the United States for medical expenses.4 The Court characterized the government's claim as 'not one for subrogation,' but 'rather for an independent liability owing directly to itself as for deprivation of the soldier's services and 'indemnity' for losses caused in discharging its duty to care for him consequent upon the injuries inflicted by (the defendant).'5

The bill, as introduced in the House of Representatives,6 however, gave the United States only a derivative right, 'subrogated to any right or claim that the injured * * * person * * * has against such third person with respect to the care and treatment so furnished or to be furnished.'7 The various reports and comments directed to this proposed legislation strongly suggest that the government was to have only a subrogated right, subject to 'all equities and defenses' which could have been exercised against the injured person.8 As a result of hearings by the House of Representatives Judiciary Committee, however, the bill was amended, in part we feel, to make clear that the United States was to have an independent right of recovery, apart from any rights the injured party might have against the tort-feasor.9 That this was one purpose of the amendments is shown by the comments made by the House Judiciary Committee in its report on the bill,10 as amended and as passed by the Senate without change.11

Whatever ambiguity remains is a result of that portion of the Act which states that the government's right to recover shall 'be subrogated to any right or claim that the injured or diseased person * * * has against such third person * * *.'12 This language has led most courts which have considered the problem now before us to hold that the Medical Care Recovery Act, supra, not only creates an independent right in the United States to recover from a tortiously liable third person the reasonable value of the care and treatment furnished an injured person, but also subrogates the government to any rights the injured person may have against such third person for medical expenses.13 The problem with such a construction is that the quoted language, instead of complementing the right created in the government with an additional right of subrogation, refers directly to and modifies the primary right initially created by the statute.

We think that, properly construed, the Act creates in the United States an independent right of recovery. This right, however, is 'subrogated' to the extent that it is subject to any state substantive defenses which would negate the requirement that the injury arise 'under circumstances creating a tort liability upon some third person.'14 The government's right to recover cannot be a wholly subrogated right, in the traditional sense, since the only time the Act applies and authorizes recovery is when the United States is required by law to give treatment and care, and hence the injured party, not having himself furnished such care, has no right of recovery to which the United States can be subrogated.15 Thus, the United States, under this Act, 'stands in the role' of a subrogee only to the extent that its independent right to recover depends upon the determination under state law as to when the circumstances create tort liability in some third person. This right is subject only to those substantive state doctrines which create or negate such liability.

We do not attempt here to determine to which state-law defenses the United States is subject and to which it is not. Nor do we suggest that the distinction will necessarily fall along the traditional but uncertain line between 'procedure' and 'substance.'16

We do hold that the right of the United States to recover the reasonable value of medical care given to an injured person as a result of the negligence of a third person is not subject to the state statutes of limitation applicable to local personal injury actions. Limitations has nothing to do with whether the circumstances surrounding the injury create a tort liability in that third person.

Our construction of the Medical Care Recovery Act, supra, is further supported by holdings of the Supreme Court that, in the absence of an express congressional waiver, claims of the federal government are not subject to state statutes of limitation.17 That there has been no such waiver here is clear, as evidenced by the spirited controversy in this case.

The order of the District Court dismissing appellant's action is reversed, and the cause remanded.

Reversed and remanded.