367 F2d 564 Argonaut Insurance Company v. Panhandle and Santa Fe Railroad Company
367 F.2d 564
ARGONAUT INSURANCE COMPANY, Appellant,
PANHANDLE AND SANTA FE RAILROAD COMPANY, Appellee.
United States Court of Appeals Fifth Circuit.
Oct. 24, 1966.
L. W. Anderson, Dallas, Tex., for appellant.
A. B. Hankins, Simpson, Adkins, Fullingim & Hankins, Amarillo, Tex., for appellee.
Before JONES, COLEMAN and AINSWORTH, Circuit Judges.
The appellant, argonaut Insurance Company, issued a compensation insurance policy to Gibbens & Slentz, Inc. It was in the well servicing business, primarily in Oklahoma but to some extent in Texas. The policy covered the operation of the insured in both states. Four employees of the insured were sent to a job in Texas. At the end of a work day, the employees started to return from Texas to their homes in Oklahoma in a pick-up truck owned by the insured, their employer. While still in Texas, the vehicle in which they were riding collided with a train of the appellee, Panhandle and Santa Fe Railroad Company, and all four employees were killed. Those entitled under the compensation laws filed claims under the Oklahoma law and awards were made to the claimants. Having paid the sums awarded under the Oklahoma Act, Argonaut brought an action in the United States District Court for the Northern District of Texas against Panhandle and Santa Fe, asserting a right of subrogation under the Texas statute. No right of subrogation exists under the Oklahoma compensation act. The Texas statute provides for subrogation to indemnify the insurer, but only where compensation is claimed under the Texas compensation law. The district court held that since the compensation claims were asserted and paid by Argonaut under the Oklahoma compensation law, which bars any right of subrogation in a death claim, no recovery could be had. A summary judgment was entered for Panhandle and Santa Fe. The judgment of the district court was correct and is