Albek v. United States

38 F. Supp. 1021, 1941 U.S. Dist. LEXIS 3377
CourtDistrict Court, D. Massachusetts
DecidedMay 23, 1941
DocketNo. 886
StatusPublished

This text of 38 F. Supp. 1021 (Albek v. United States) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Albek v. United States, 38 F. Supp. 1021, 1941 U.S. Dist. LEXIS 3377 (D. Mass. 1941).

Opinion

BREWSTER, District Judge.

This action is brought to recover the benefits of a policy of war risk insurance which expired in July, 1926. Claim was made January 28, 1930, and on appeal to the Administrator’s Board of Appeals was denied October 11, 1932. A suit brought in the District Court for the Eastern District of New York prior to October 11, 1932, was, on November 10, 1933, dismissed because no disagreement was shown. Albek v. United States, 4 F.Supp. 1020. On April 4, 1940, a second claim was submitted to the Veterans’ Administration which was denied May 31, 1940. This action was brought August 30, 1940.

Defendant moves to dismiss on the ground that the action is barred by the statute limiting action on war risk insurance. 38 U.S.C.A. § 445.

The only question presented is whether this second claim operated to restore a right to sue the government lost by inaction for over seven years after the claim had been first rejected. The authorities are clear that the renewed claim can have no such effect. Ball v. United States, 6 Cir., 101 F.2d 272; Simmons v. United States, 4 Cir., 111 F.2d 618; United States v. Kelley, 8 Cir., 110 F.2d 922.

In Simmons v. United States, supra, the court observed (111 F.2d page 619) : ‘‘If any reconsideration by the administrative body would have such an effect, it would seem that the statute of limitations applicable to an action brought in the District Court would be vitiated. This 'statute of limitations was obviously designed for repose, and, if the administrative body could continually open up stale cases, and revive these cases even after the statute of limitations had completely run, there would then seem never, in the real sense, to be any repose.”

I am in accord with these views and therefore must conclude that the defendant should prevail in its motion to dismiss.

Motion allowed.

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Related

Ball v. United States
101 F.2d 272 (Sixth Circuit, 1939)
United States v. Kelley
110 F.2d 922 (Eighth Circuit, 1940)
Simmons v. United States
111 F.2d 618 (Fourth Circuit, 1940)
Albek v. United States
4 F. Supp. 1020 (E.D. New York, 1933)

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Bluebook (online)
38 F. Supp. 1021, 1941 U.S. Dist. LEXIS 3377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/albek-v-united-states-mad-1941.