Holbrook v. Andersen Corporation ( 1993 )


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    UNITED STATES COURT OF APPEALS
    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    FOR THE FIRST CIRCUIT
    ____________________

    No. 92-1902

    MARY A. HOLBROOK, MARY E. HOLBROOK,
    INDIVIDUALLY AND AS MOTHER AND
    NEXT FRIEND OF DANIEL M. HOLBROOK,

    Plaintiffs, Appellants,

    v.

    ANDERSEN CORPORATION, ET AL.,

    Defendants, Appellees.


    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MAINE

    [Hon. Gene Carter, U.S. District Judge]
    ___________________

    ____________________

    Before

    Boudin, Circuit Judge,
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    Campbell, Senior Circuit Judge,
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    and Stahl, Circuit Judge.
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    James M. Campbell with whom Michelle I. Schaffer, Ronald M.
    __________________ _____________________ __________
    Davids and Campbell & Associates were on brief for appellants.
    ______ _____________________
    Margaret D. McGaughey, Assistant United States Attorney, with
    _______________________
    whom Richard S. Cohen, United States Attorney, and Paula D. Silsby,
    ________________ _______________
    Senior Litigation Counsel, were on brief for appellees.


    ____________________

    June 30, 1993
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    BOUDIN, Circuit Judge. The Holbrooks' two-and-a-half-
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    year-old son, Daniel Holbrook, sustained severe and permanent

    injuries after falling through a second-floor window of the

    Holbrooks' apartment. Because plaintiff Mark Holbrook was

    employed by the United States Navy at the time of the

    accident, the United States paid 80 percent of the costs of

    Daniel's medical treatment under the Dependent's Medical Care

    Act, 10 U.S.C. 1071 (the "Dependent's Act"). The Holbooks

    then sued Andersen Corporation, the manufacturer of the

    window and screen, alleging negligence and product liability.

    The Holbrooks notified the United States of the initiation of

    the suit, but the United States did not intervene.

    Three days before trial, the Holbrooks and Andersen

    settled the suit for $725,000.1 This amount was far less

    than the complaint had sought, and the amount presumably

    reflected the parties' judgment about likelihood of success;

    Daniel Holbrook had been unsupervised at the time of the

    accident, and there were no witnesses. The United States was

    not a party to the settlement, nor did the settlement

    agreement provide that any money should be paid by Andersen

    to the United States in respect of the medical costs that the

    government had incurred. The settlement agreement did



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    1Attorneys' fees and expenses absorbed a large portion
    of this amount ($391,505.50). Of the balance, the Holbrooks
    were allotted a portion ($50,000) for direct expenses with
    the remainder to be held in trust for Daniel.

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    provide, however, that the Holbrooks would indemnify Andersen

    if the latter were held liable to the United States.

    In its order approving the settlement, the district

    court sua sponte ordered that $139,028 of the settlement
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    proceeds be placed in an escrow account to satisfy potential

    liens of the United States or others.2 Six months later the

    United States moved to compel disbursement to it of the funds

    held in escrow, and shortly thereafter the United States

    formally moved to intervene in the action; the Holbrooks

    opposed both motions. The court ultimately granted both

    motions and after a recalculation of the government's actual

    payments ordered disbursement to the United States of

    $122,834. The balance of the escrow was remitted to the

    Holbrooks. The Holbrooks appeal, arguing that this

    disbursement was not authorized by law.

    In claiming a right to a portion of the Holbrooks'

    settlement, the United States relies solely on the Federal

    Medical Care Recovery Act, 42 U.S.C. 2651 ("the Recovery

    Act"). This statute grants to the government a right to

    recover from a third-party tortfeasor the reasonable value of

    medical services that the government has furnished under the


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    2Local rules required court approval of settlements of
    claims brought on behalf of minor children. The court's
    escrow order may have been prompted by the Holbrooks'
    statement in their motion for court approval of the
    settlement that the Navy had paid 80 percent of the medical
    bills and that the total medical expenses amounted to
    $139,028.

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    Dependent's Act (or under other similar statutes).

    Specifically, the Recovery Act provides:

    In any action in which the United States is
    authorized or required by law to furnish hospital,
    medical, surgical, or dental care and treatment . .
    . 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 . . . 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 person . . . has against
    such third person to the extent of the reasonable
    value of the care and treatment so furnished or to
    be furnished.

    42 U.S.C. 2651(a). The statute then sets forth procedures

    for the government's enforcement of this right of recovery.

    The United States may "intervene or join in any action or

    proceeding brought by the injured or diseased person" or, if

    such an action is not commenced within six months, may

    "institute and prosecute legal proceedings against the third

    person who is liable for the injury or disease." Id.
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    2651(b).

    The parties direct their arguments in this case chiefly

    at the procedural component of the statute, section 2651(b).

    The Holbrooks argue that the United States' motion to

    intervene came too late, because it was not filed until after

    the Holbrooks' suit against Andersen was resolved by

    settlement. The United States responds by pointing to case

    law providing that the procedural devices set forth in



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    section 2651(b) are not exclusive and that a motion to

    intervene may be filed "at any time," even after entry of

    judgment. United States v. Merrigan, 389 F.2d 21, 25 (3d
    ___________________________

    Cir. 1968); see also United States v. York, 398 F.2d 582,
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    585-86 (6th Cir. 1968). We think that the crucial issue is

    not when the government may intervene but rather whom it may
    ____ ____

    proceed against once it makes an appearance in the case.

    The statute grants to the United States a right to

    recover "from [the] third person" who is liable in tort for

    the injury. It makes no provision for the United States to

    recover against the injured party or from funds

    unconditionally paid to the injured party by the tortfeasor.

    Moreover, the United States' right to recover under the

    statute is contingent upon "circumstances creating a tort

    liability upon some third party." 42 U.S.C. 2651(a);

    Thomas v. Shelton, 740 F.2d 478, 481 (7th Cir. 1984)
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    (tortfeasors' "liability under the Medical Care Recovery Act

    depends on their being found liable . . . under the tort law

    of the pertinent state"); United States v. Trammel, 899 F.2d
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    1483, 1488 (6th Cir. 1990) (same). There has been no such

    determination in this case.

    "All courts which have considered the question have

    agreed that the statute gives the United States an

    independent right of recovery against the tortfeasor . . . ."

    United States v. Housing Authority of Bremerton, 415 F.2d
    __________________________________________________



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    239, 241 (9th Cir 1969). Thus, the government's right is not

    extinguished by the injured person's settlement and release

    with the tortfeasor. See, e.g., United States v. Theriaque,
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    674 F. Supp. 395 (D. Mass. 1987). Indeed, the government's

    right against the tortfeasor under the Recovery Act is not

    defeated even by certain restrictions that might bar the

    injured person's own recovery.3 There is thus no necessity

    for the United States to look to the injured party's

    settlement for compensation.

    If the United States wishes to invoke the Recovery Act

    to recover its medical payments in this case, we think that

    under the plain language of the statute it must proceed

    against Andersen and seek to establish Andersen's tort

    liability. The language of the statute does not authorize

    the government to collect under the Recovery Act out of a

    settlement negotiated between the injured person and the

    tortfeasor. Nor is there any case law that permits such a

    recovery absent an express agreement designating for the

    government a portion of the settlement.

    This case does not involve the peculiar facts of

    Cockerham v. Garvin, 768 F.2d 784, 787 (6th Cir. 1985).
    ____________________



    ____________________

    3See Heusle v. National Mutual Ins. Co., 628 F.2d 833,
    ___ ___________________________________
    837 (3d Cir. 1980) (procedural restrictions); United States
    ______________
    v. Moore, 469 F.2d 788, 790 (3d Cir. 1972) (state doctrine of
    ________
    interspousal immunity), cert. denied, 411 U.S. 905 (1973);
    ____ ______
    United States v. Gera, 409 F.2d 117, 119-20 (3d Cir. 1969)
    ______________________
    (state statute of limitations).

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    There the Sixth Circuit allowed recovery out of settlement

    proceeds where "[t]he [injured person] and tortfeasor

    specifically agreed that part of the money paid over to the

    [injured person] would be held in escrow pending a claim by

    the [United States] for specific medical bills . . . ." The

    court treated the escrow as giving the government

    "beneficiary" status akin to that enjoyed by the third-party

    beneficiary of a contract. See id. at 784. The court also
    ___ __

    decided that on remand the government's share of the

    settlement should be determined by "equitable

    considerations," taking account of any discounted settlement

    accepted by the victim and the litigation costs he had borne.

    Id. at 787. The government does not argue that in this case
    __

    there was any third-part beneficiary agreement between the

    Holbrooks and Andersen.

    Rather, the United States says that its present claim

    has been misunderstood. It argues that its attempt to

    recover from the escrow is not a claim against the Holbrooks

    but rather, consistent with the Recovery Act, is a claim

    against Andersen, which supplied the funds. This is a word

    game that does not reflect the reality of the situation:

    Andersen has paid the settlement amount to the Holbrooks in
    ____

    exchange for a release of claims against it. The money

    belongs to the Holbrooks and their son quite as much as Mr.





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    Holbrook's salary paid to him by the Navy belongs to him and

    not to the Navy which is the source of the funds.

    The best argument for the United States is based on

    policy considerations. Andersen's payment to the Holbrooks

    is not technically an admission of liability, Fed. R. Evid.

    408, but in reality the settlement reflects a judgment by

    Andersen that there is a risk of liability and that the case

    is worth that much to settle. But to the extent the
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    tortfeasor is liable to the Holbrooks under tort law--an

    issue mooted by the settlement--it is also liable to the

    United States for any medical costs paid by the latter.

    Of course the United States still has a right to sue

    independently and, if it can prove liability, to collect its

    full medical expenses with no settlement discount at all.

    But everyone knows that if fault is debatable and the

    tortfeasor settles with the injured party, the chances for

    the United States to recover may be much reduced. Any lawyer

    would prefer to try a tort case in which the co-plaintiff is

    an injured two-and-a-half-year old, especially where a

    verdict for the child virtually requires an award for the co-

    litigant.

    What is even more troubling is that the tortfeasor has

    an incentive in such a case to pay the injured party

    something extra in settlement precisely in order to uncouple

    the two claims. Once the United States is left to litigate



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    on its own, it not only has no sympathetic victim to take the

    lead before the jury but must bear its own litigation

    expenses. And, if (as here) the alleged tortfeasor has an

    indemnity agreement with the victim, making the latter

    responsible for any award to the United States, the victim or

    witnesses associated with the victim now have an economic

    incentive to minimize the tortfeasor's fault when the United

    States sues.

    These policy concerns are not overwhelming: the United

    States is not without litigation resources, in this case it

    has the benefit of much discovery already done by the

    Holbrooks, and perjury laws cabin the witnesses' testimony.

    Had it anticipated the problem, Congress might well have

    provided a legislative solution along the lines of the

    Cockerham case: The Recovery Act could easily have said that
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    if the tortfeasor and victim settle, the United States can

    claim for its medical costs an "equitable" share of the

    settlement to be determined by the court. But Congress did

    not to so--it cannot anticipate every problem--and so the

    question posed is whether the courts should do the repair

    work themselves.

    The answer here, we think, is no. The statute does not

    literally forbid this "equitable share" solution, but neither

    do the provisions of this reasonably detailed statute provide

    for any such recovery against the victim or the settlement



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    fund. Nor can we be certain that Congress would wish to

    impose an "equitable share" solution; perhaps it might pick a

    quite different solution or no solution at all. There is no

    magic formula to say when courts should do patch-work repairs

    to legislation, but in our view this is not such a case. If

    Congress wants a solution, it is best for it to tailor its

    own.

    The judgment of the district court is reversed.
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