concurring in part and dissenting in part.

The question we must decide in this case is a narrow one. Has Congress procedurally barred the maintenance of a wrongful death action by the decedent’s survivors when the deceased or his estate previously settled the claim for physical injuries with the United States? I respectfully dissent from the majority’s conclusion that we may imply an intent by Congress to waive the sovereign immunity of the United States against wrongful death actions under such circumstances. To the contrary, in enacting section 2672, Congress precluded an heir’s wrongful death claim where the decedent or his or her estate entered into a settlement agreement with the United States. I concur in the majority’s conclusion that if the Schwarder children’s wrongful death action is proper under section 2672, the amount awarded by the district court does not violate the Medical Injury Compensation Reform Act of 1975 (MICRA), Cal.Civ.Code § 3333.2.

I. Waiver of Sovereign Immunity— Exclusions are Controlled by Federal Law

Before discussing the merits of this appeal, we must first consider the law that applies to this case. It is clear that federal law governs all procedural aspects of a claim under the Federal Tort Claims Act *1127 (“FTCA”). Under federal law, the plaintiffs claims are procedurally barred.

“Absent a waiver of sovereign immunity, the Federal Government is immune from suit.” Loeffler v. Frank, 486 U.S. 549, 554 , 108 S.Ct. 1965, 1968 , 100 L.Ed.2d 549 (1988); see also Meyer v. Fidelity Savings, 944 F.2d 562, 566 (9th Cir.1991) (quoting Loeffler). The FTCA constitutes a limited waiver of immunity for injuries caused by “the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346 (b); see also United States v. Orleans, 425 U.S. 807, 813-14 , 96 S.Ct. 1971, 1975 , 48 L.Ed.2d 390 (1976) (noting that the waiver of immunity under the FTCA is subject to various limitations). In determining whether a government employee has engaged in tor-tious conduct for which the United States has consented to suit, the FTCA provides that:

28 U.S.C. § 2674 (emphasis added). “As this provision makes clear, ... the extent of the United States’ liability under the FTCA is generally determined by reference to state law.” Molzof v. United States, — U.S. -, -, 112 S.Ct. 711, 714 , 116 L.Ed.2d 731 (1992).

Although state law governs the scope of the United States’ substantive tort liability, we must look to federal statutory and common law to determine whether a claim is procedurally barred or excluded under the FTCA. United States v. Neustadt, 366 U.S. 696, 705-11 , 81 S.Ct. 1294, 1299-1302 , 6 L.Ed.2d 614 (1961); Ramirez v. United States, 567 F.2d 854, 856 (9th Cir.1977) (en banc).

In Neustadt , the plaintiffs were induced to purchase a home at a price in excess of the fair market value, based on a negligent inspection and appraisal of the home made by an employee of the Federal Housing Administration (FHA). 366 U.S. at 698-701 , 81 S.Ct. at 1296-97 . Plaintiffs filed suit against the United States. The district court awarded damages under the FTCA. Id. at 701 , 81 S.Ct. at 1297 . The Government appealed from the judgment on the ground that the claim was barred by 28 U.S.C. § 2680 (h), which precludes recovery under the FTCA for “ ‘[a]ny claim arising out of ... misrepresentation.’ ” Id. (quoting 28 U.S.C. § 2680 (h)). The Fourth Circuit affirmed the damages award, holding that section 2680(h) did not bar the plaintiff’s claim because the misrepresentation in this case was “merely incidental” to the negligent appraisal. 281 F.2d 596, 602 (4th Cir.1960). In so holding, the court relied on the decision of the New York Court of Appeals in Glanzer v. Shepard, 233 N.Y. 236 , 135 N.E. 275 (1922). Id., at 601. In Glanzer , a public weigher was held liable for a negligently inaccurate weigh certificate “not ... merely for careless words but for the careless performance of the act of weighing.” Neustadt, 281 F.2d at 601 .

The Supreme Court reversed the judgment against the United States. 366 U.S. at 711 , 81 S.Ct. at 1302 . With respect to the Fourth Circuit’s reliance on Glanzer , the Court commented as follows:

Id. at 705-06, 81 S.Ct. at 1299-1300 (footnote omitted).

In Ramirez , we applied Neustadt in our interpretation of section 2860(h). 567 F.2d at 856 . In determining whether a medical malpractice claim was procedurally barred under the FTCA, we stated the guiding principle as follows: “Questions of interpretation under the exclusion provisions are controlled by federal law.” Id. (citing Neustadt, 366 U.S. at 705-06 , 81 S.Ct. at 1299-1300 ).

In Woods v. United States, 720 F.2d 1451 (9th Cir.1983), we stated that in deciding whether certain conduct constituted a *1128 battery, as that term is used in the exclusionary provisions of section 2680(h), we were compelled to apply federal law, and “not what constitutes a battery within the meaning of California law.” Id. at 1458 n. 2.

The majority holds that Ramirez and similar cases must be limited to the interpretation of the exclusion provisions in section 2680 of the FTCA in order to avoid a conflict with the Supreme Court’s decision in Williams v. United States, 350 U.S. 857 , 76 S.Ct. 100 , 100 L.Ed. 761 (1955) (per curiam). In Williams , the Court vacated a decision of this court interpreting the phrase “acting in the line of duty,” found in section 2671 of the FTCA, pursuant to federal law. Id. The Court remanded the case with instructions to interpret the phrase according to the California doctrine of respondeat superior. Id.

Contrary to the majority’s assertion, the application of Ramirez to the instant matter does not create a conflict with Williams . Section 2671, at issue in Williams , is a purely definitional section of the waiver of sovereign immunity under the FTCA. It does not purport to exclude coverage under the FTCA. In contrast, section 2672 contains an express exclusion of liability under the FTCA where the decedent has entered into a settlement agreement.

For reasons that are not totally clear, the majority has cited Montellier v. United States, 315 F.2d 180 (2d Cir.1963), and Air Transport Associates v. United States, 221 F.2d 467 (9th Cir.1955) in its opinion. As the majority concedes, both Montellier and Air Transport were concerned with the effect of a pre-injury release of liability by the victim on a subsequent wrongful death action by his survivors. The FTCA does not contain an express provision governing the effect of pre-injury releases on claims by the victim’s survivors. In section 2672, Congress explicitly precluded a claim against the United States where the victim of a tort committed by a United States employee settles a claim.

II. Exclusion of Certain Tort Claims Under Section 2672

Having determined that we must look to federal law to determine whether a wrongful death action is procedurally barred under the FTCA because the decedent settled his claim, we first consider the plain language of the statute. If it is ambiguous, we must look to relevant legislative history, federal common law, and accepted principles of statutory construction to determine the intent of Congress. See Smith v. United States, 953 F.2d 1116, 1118 (9th Cir.1991) (relying on the language of the statute, federal case law, and legislative history to determine the meaning of the ambiguous term “foreign country” under section 2680(k) of the FTCA).

In determining whether a wrongful death action is excluded by section 2672 from the waiver of sovereign immunity by the United States, we must resolve any ambiguity in the statute in favor of the United States. “It is well established that when a sovereign surrenders its immunity from suit by statute, such a statute must be strictly construed against the surrender of such immunity.” Bat Rentals, Inc. v. United States, 479 F.2d 43, 45 (9th Cir.1973); see also Love v. United States, 944 F.2d 632, 637 (9th Cir.1991) (same). If the plain words of section 2672 bar the survivors’ wrongful death cause of action because Harry Schwarder, the decedent, settled his personal injury claim with the Government, we must reverse the district court. If, on the other hand, the words are not clear, then in determining the intent of Congress we must strictly construe section 2672 to preclude a waiver of sovereign immunity from claims by survivors following a settlement by the person whose physical injuries were directly caused by the tort of an employee of the United States.

Section 2672 provides in pertinent part that “[t]he head of each Federal agency or his designee ... may ... settle any claim for money damages against the United States for ... personal injury or death caused by the negligent or wrongful act or omission of any employee of the agency.” Section 2672 also provides that:

(emphasis added). Section 2672 makes a settlement “final and conclusive” against an action brought by the claimant for his or her personal injury, or a claim filed by his or her estate if the injury caused death. There is no ambiguity in the prohibition against a claim brought by the person who was physically injured or by his or her estate. Section 2672 also bars any claim “by reason of the same subject matter.” The meaning of these words is not clear. The words “by reason of the same subject matter” could be interpreted to bar the bringing of a cause. of action for the wrongful death of a person physically injured by an employee of the United States. The same term could also be interpreted to bar only a claim brought by the estate of the decedent, and not to preclude a claim for the separate injury to the members of a person’s family that flows from the wrongful death of the decedent.

Mindful of our duty to construe the ambiguous terms of section 2672 against a surrender of sovereign immunity, we must first examine the procedural law regarding the maintenance of a wrongful death claim as it existed in 1948 at the time Congress adopted the bar to the maintenance of “any claim” against the United States after a settlement has been effected. See Act of June 25, 1948, ch. 646, Pub.L. No. 773.

III. Survivors’ Wrongful Death Claims are Procedurally Barred by Decedent’s Settlement

At common law, a tort victim’s cause of action was extinguished upon his or her death. Higgins v. Butcher, K.B. 1607, Yelv. 89, 80 Eng.Rep. 61. English common law did not recognize a separate cause of action in the decedent’s survivors for wrongful death. Baker v. Bolton, N.P. 1808, 1 Camp. 493, 170 Eng.Rep. 1033. These rules became a part of American common law. See Insurance Co. v. Brame, 95 U.S. (5 Otto) 754, 756, 24 L.Ed. 580 (1877) (“[A]t the common law no civil action lies for an injury which results in the death of the party injured.”) Under this harsh doctrine, a tortfeasor whose conduct caused death was immune from civil liability. If the victim survived, he or she had a cause of action for damages. In 1846, to remedy this injustice, England enacted the Fatal Accidents Act, also known as Lord Campbell’s Act which created a separate cause of action for the survivors of a decedent who was the victim of a tort that caused his or her death. 9 & 10 Viet. c. 93. Similar wrongful death statutes were subsequently enacted in every American state. See Speiser, Recovery for Wrongful Death, Appendix A (2d ed. 1975).

A majority of the state courts that have considered the question have held that a survivor cannot bring a wrongful death action if the decedent was barred from doing so in his lifetime, because the wrongful death claim is essentially derivative of the injury to the decedent. See William Prosser & W. Page Keeton, Law of Torts § 127 at 955 (footnotes omitted) (“The wrongful death action for the benefit of survivors is, like other actions based on injuries to others, derivative in nature, arising out of and dependent upon the wrong done to the injured person and thus barred when his claim would be barred.”). “[A] judgment for or against the decedent in an action for his injuries commenced during his lifetime, or the compromise and release of such an action, will operate as a bar to any subsequent suit founded upon his death.” Id. (footnotes omitted); see also Walrod v. Southern Pacific Co., 447 F.2d 930 (9th Cir.1971) (applying Arkansas wrongful death law); Frescoln v. Puget Sound Traction, Light & Power Co., 225 F. 441 (D.C.Wash.1915) (applying Washington wrongful death law); Woodward Iron Co. v. Craig, 256 Ala. 37 , 53 So.2d 586 (1951); Simmons First Nat’l Bank v. Abbott, 288 Ark. 304 , 705 S.W.2d 3 (1986); Kling v. Torello, 87 Conn. 301 , 87 A. 987 (1913); Perry v. Philadelphia, Baltimore & Washington R.R. Co., 24 Del. 399 , 77 A. *1130 725 (1910); Variety Children’s Hospital v. Perkins, 445 So.2d 1010 (Fla.1983); Fountas v. Breed, 118 Ill.App.3d 669 , 74 Ill.Dec. 170 , 455 N.E.2d 200 (Ill.App.Ct.1983); Perry’s Adm’r v. Louisville & Nashville R.R. Co., 199 Ky. 396 , 251 S.W. 202 (1923); Harris v. Illinois Cent. R.R. Co., Ill Miss. 623, 71 So. 878 (1916); Schmelzer v. Central Furniture Co., 252 Mo. 12 , 158 S.W. 353 (1913); Hindmarsh v. Sulpho Saline Bath Co., 108 Neb. 168 , 187 N.W. 806 (1922); Kelliher v. New York Cent. & Hudson R.R. Co., 212 N.Y. 207 , 105 N.E. 824 (1914); Edwards v. Interstate Chemical Corp., 170 N.C. 551 , 87 S.E. 635 (1916); Haws v. Luethje, 503 P.2d 871 (Okla.1972); Price v. Richmond & D.R. Co., 33 S.C. 556 , 12 S.E. 413 (1890); St. Louis Southwestern Ry. Co. v. Hengst, 36 Tex.Civ.App. 217 , 81 S.W. 832 (1904); Legg v. Britton, 64 Vt. 652 , 24 A. 1016 (1892); Virginia Electric & Power Co. v. Decatur, 173 Va. 153 , 3 S.E.2d 172 (1939); Parsons v. Roussalis, 488 P.2d 1050 (Wyo.1971).

The majority rule precluding a wrongful death action by the survivors of a tort victim, where the record shows that the decedent entered into a settlement for his injuries, has also been adopted by the federal courts to bar recovery under certain federal statutes. In Mellon v. Goodyear, 277 U.S. 335 , 48 S.Ct. 541 , 72 L.Ed. 906 (1928), for example, the Supreme Court held that a settlement and release of all claims entered into by an injured employee under the Federal Employers’ Liability Act, barred a subsequent wrongful death action by his survivors. Id. at 344 , 48 S.Ct. at 544 . The Court explained its decision as follows:

Id. But see Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573 , 94 S.Ct. 806 , 39 L.Ed.2d 9 (1974) (adopting minority rule for cases involving seamen injured in territorial waters).

The rationale for barring a claim for wrongful death if the decedent or his or her estate entered into a settlement is to avoid double recovery for the same tortious conduct. See 4 F. Harper, F. James & O. Gray, The Law of Torts, § 24.6 at p. 473 (4th ed. 1986) (“The vital policy behind [this rule] ... is certainly in part the prevention of double recovery.”). Allowing a wrongful death action to proceed where the decedent has already settled or recovered for his injuries, gives rise to the possibility that the heirs will receive damages already obtained by the decedent:

Id. at 475-76 (footnotes omitted) (emphasis in original).

California and six other states have adopted a rule that permits survivors to maintain a cause of action for wrongful death, notwithstanding the fact that the decedent, or his or her estate settled the claim against the tortfeasor. Blackwell v. American Film Co., 189 Cal. 689 , 209 P. 999 (1922); Goodyear v. Davis, 114 Kan. 557 , 220 P. 282 (1923); Dougherty v. New Orleans Railway & Light Co., 133 La. 993 , 63 So. 493 (1913); Alfone v. Sarno, 87 N.J. 99 , 432 A.2d 857, 865 (1981); De Hart v. Ohio Fuel Gas Co., 84 Ohio App. 62 , 85 N.E.2d 586 (1948); Kaczorowski v. Kalkosinski, 321 Pa. 438 , 184 A. 663 (1936); *1131 Rowe v. Richards, 35 S.D. 201 , 151 N.W. 1001 (1915). The state courts that have adopted this minority rule “have either ignored or brushed aside the double liability problem.” Alfone, 432 A.2d at 866 .

To permit a wrongful death action under the FTCA where the facts show that the decedent settled his or her claim for physical injuries, we would have to presume that Congress intended to reject the majority rule that precludes such actions when it stated in section 2672 that “[t]he acceptance by the claimant of any ... settlement ... shall constitute a complete release of any claim ... by reason of the same subject matter.” These words, when viewed in light of the majority rule, would appear to compel precisely the opposite conclusion. Assuming, however, that the meaning of these words is ambiguous, the Supreme Court has instructed that we must strictly construe the statutory language in favor of preserving the sovereign immunity of the United States.

By applying California law in its interpretation of section 2672, the majority has confused the FTCA’s requirement that a state’s substantive tort law be applied, with the requirement that federal law must be followed in determining whether a claim is excluded or procedurally barred. Neustadt, 366 U.S. at 705-06 , 81 S.Ct. at 1299-1300 ; Ramirez, 567 F.2d at 856 . The majority’s holding also exposes the United States to different procedural requirements depending on the state in which the tort occurred. This result violates the well-established policy that procedural rules fashioned by federal courts must be uniformly applied. Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134 , 157 n. 18, 105 S.Ct. 3085 , 3098 n. 18, 87 L.Ed.2d 96 (1985) (Brennan, J., concurring) (“ ‘Where the courts are required themselves to fashion a federal rule of decision, the source of that law must be federal and uniform.’ ” (quoting Wayne Chemical, Inc. v. Columbus Agency Service Corp., 426 F.Supp. 316, 325 (N.D.Ind.), modified on other grounds, 567 F.2d 692 (7th Cir.1977)).

The district court concluded that section 2672 permits survivors to file a wrongful death action, notwithstanding the settlement by the decedent, based on its concern that a contrary conclusion would preclude other persons who were physically injured by the same tortious conduct from recovering damages if one of the victims entered into a settlement agreement. The district court posed this hypothetical question. Suppose 25 persons are injured when a postal truck hits a bus. Would section 2672 as interpreted by the Government bar recovery by the other passengers where one passenger had already settled? The district court persuaded itself that such a result would follow if it held that wrongful death claims by the heirs of an injured person who settled his or her claim were barred. In reaching this conclusion, the district court confused a wrongful death action which, although a separate tort, is a claim that arises solely from the tortious conduct that physically injured the decedent, with claims for direct physical injuries simultaneously suffered by more than one person as a result of the same tortious conduct. The majority rule in this country bars recovery for wrongful death if the decedent has settled his or her claim. No state or jurisdiction, however, has purported to bar recovery for persons who were physically injured by the same tortious conduct. I am sure that this court would reject that absurd result if ever the argument were made. We are precluded from interpreting the words used by Congress so as to give them a distorted meaning. Public Citizen v. Department of Justice, 491 U.S. 440, 454 , 109 S.Ct. 2558, 2566 , 105 L.Ed.2d 377 (1989).

Application of the majority rule which precludes a wrongful death claim by survivors where the decedent has settled his personal injury claim would protect the United States from paying twice for physical injuries to one person. Under the majority rule, the survivors of a tort victim would not be able to recover for the lost support of the decedent, where the decedent had already received compensation for any lost wages that would have contributed to the support of his or her survivors. Because Congress has not expressly adopted the minority rule, we are required to conclude that Congress did not intend to allow a double recovery in the absence of an express waiver of such liability.

*1132 Conclusion

I would reverse the district court’s conclusion that section 2672 permits the heirs of a decedent who previously settled his or her claim, to file a wrongful death claim. I would construe the exclusion contained in section 2672 as a reflection of Congress’ intention (1) to have the same procedures apply uniformly in each FTCA action in every state, (2) to limit the waiver of sovereign immunity, and (3) to bar double recovery against the United States by applying the majority rule that precludes an heir from prosecuting a wrongful death action if the decedent settled his or her claim. To reach the result reflected in the majority’s opinion, we must ignore well-established rules governing statutory construction, construe ambiguous language in favor of a waiver of sovereign immunity by the United States, and conclude that Congress intended sub silentio to adopt the minority rule concerning the effect of a settlement upon a wrongful death claim, and thereby expose taxpayers to the risk of paying twice for the same tortious conduct. I am unwilling to presume that Congress would intend such folly.