California Casualty Indemnity Exchange v. United States , 74 F. Supp. 410 ( 1947 )

HALL, District Judge.

In cases 5877, Dodson; 5878, Whyatt; 5879, Corbin, and 5880, Howard, •deaths did not occur, but the libelants’ insurance carriers seek, by their amended libel to recover not only the employer’s liability for compensation under the Longshoremen’s Act, 33 U.S.C.A. § 901 et seq., but an additional sum as damages for personal injuries to the awardee. The period of the Statute of Limitations in California for personal injuries, California Code Civ.Proc. § 340, subd. 3, is the same as for death, Hence the one year period of limitation applies.

Libelants assert an “exceptional circumstance,” with relation to these four cases in that by virtue of th-e control of the litigation being in the employer and its insurance carrier, it would amount to a penalty upon the injured party by applying the one year Statute. But the answer to this lies in the Longshoremen’s and Harbor Workers’ Compensation Act. The libelants made their election under that Act, 33 U.S.C.A. § 933 (a, bj, to seek compensation. Whatever rights they had were assigned to the employers and their carrier, and by the specific terms of the Act, the employers and the carrier are then given control of the litigation. Such an election precludes recovery of the additional compensation if a suit is not filed in time. The one year period of limitation applicable in case No. 5876, D.C., 74 F.Supp. 401, is applicable and controlling here. Reference is made to the memorandum this day filed in case No. 5876.

The motion to dismiss each of the above cases is granted.