Supreme Court of Texas.
Charles CAMPBELL et al., Petitioners,
SONFORD CHEMICAL COMPANY, Respondent.
Nov. 15, 1972.
Rehearing Denied Dec. 13, 1972.
Attorneys & Firms
*932 Louis V. Nelson, Ernest L. Sample, Beaumont, for petitioners.
Orgain, Bell & Tucker, Howell Cobb, Beaumont, for respondent.
Charles Campbell filed suit for personal injury against Sonford Chemical Company, *933 respondent herein, on May 15, 1969, alleging that he was an employee of Texas Welding Works and was injured on the job due to the negligence of Sonford while performing work for Sonford in the fall and winter of 1964 and spring of 1965.
Texas Employers’ Insurance Association intervened, asserting that it was the compensation carrier for Texas Welding Works, had paid Campbell $618 compensation for his injury and, by reason of Section 4a for not filing his claim, that this matter had been adjudicated favorably to him and final judgment in his compensation suit was not entered until May 7, 1969, just a little over a week before his cause of action against Sonford was filed.
The trial court granted Sonford’s motion for summary judgment and the Court of Civil Appeals affirmed. 480 S.W.2d 237. We reverse and remand for trial on the merits.
The Court of Civil Appeals reached its decision on the basis that the general statute of limitations, Article 5526, applies to the employee’s claim against a third party and that the effect of filing a claim with the Industrial Accident Board merely tolls the running of this statute. Consequently, a claim which was filed more than two years after the date of the injury cannot toll the statute because the statute would have already run its course and the claim would have been barred and could not be revived by subsequent action on the part of the employee.
This reasoning is not without support from authorities in some other jurisdictions. 8 Appleman, Insurance Law & Practice 528, s 4982, states that it has been held that the insurer’s action against a tortfeasor is governed by the statute of limitations pertaining to personal injuries or wrongful death. To this effect, see American Mutual Liability Ins. Co. v. Reed Cleaners, 265 Minn. 503, 122 N.W.2d 178 (1963).
On the other hand, other jurisdictions have followed different rules, one of which is set out in 18 Couch, Cyclopedia of Insurance Law 2d 731, s 75:39, to the effect that statutes which provide that an employer or insurer who becomes obligated to an employee for compensation may bring an action against a third party to recover the compensation which he has paid, create a new right of action and limitation begins to run against this new right of action from the time it was created rather than from the date of the original injury. See Limited Mut. Compensation Ins. Co. v. Billings, 74 Cal.App.2d 881, 169 P.2d 673 (1946).
The compensation laws of the State of Texas have been in existence for many years. Fidelity Union Casualty Co. v. Texas P. & L. Co., 35 S.W.2d 782 (Tex.Civ.App.—Dallas 1931, writ ref’d).
The mere filing of a claim with the Industrial Accident Board even if filed timely does not toll the statute of limitations. Should a claimant attempt to invoke the provisions of our Workmen’s Compensation Law and be unsuccessful in this attempt, he is still governed by the provisions of Article 5526.
The rule in Texas may be stated as follows: When a claimant elects to proceed under workmen’s compensation statutes and qualifies for an award thereunder, the cause of action of the compensation carrier does not accrue against a third party until the amount of the award made by the Industrial Accident Board is paid by the carrier or until the claimant obtains a final judgment in a court of competent jurisdiction against such insurance carrier. When either of these events occur, the cause of action matures against the third party and the suit authorized by Hernandez v. Great American Ins. Co. of N.Y., 464 S.W.2d 91 (Tex.1971).
We recognize that this rule may, on occasion, work an injustice on the third-party defendant because of the delay in pursuing the cause of action against him. The fault, however, lies in the requirement of Article 5526.
The judgments of the trial court and the Court of Civil Appeals are reversed and the cause remanded for trial on the merits. All costs of this appeal are taxed against Sonford Chemical Company, the respondent herein.
Dissenting opinion by POPE, J., in which GREENHILL, C.J., joins.
POPE, Justice (dissenting).
I respectfully dissent. This is a suit for common law recovery of damages, and while it may be said that the insurer’s action did not accrue until the time stated in the majority opinion, the same may not *935 be said of the injured employee’s claim. His action was not asserted against the third party until two years and nine months after his injury. The Legislature, as to workmen’s compensation, has said that good cause will excuse the late filing of a compensation claim. The Legislature has not made such an exception in the case of a common law third party action.
GREENHILL, C.J., joins in this dissent.
All statutory references are to Vernon’s Texas Revised Civil Statutes Annotated.