Aetna Casualty & Surety Co. v. United States

• Decision Date: 14 January 1948
• Docket Number: Civ. 8130.
• Citation: 76 F. Supp. 333
• Parties: ÆTNA CASUALTY & SURETY CO. v. UNITED STATES.
• Court: U.S. District Court — Eastern District of New York

76 F. Supp. 333

ÆTNA CASUALTY & SURETY CO. v. UNITED STATES.

Civ. 8130.

District Court, E. D. New York.

January 14, 1948.

Edward W. Springsteen, of New York City, for plaintiff.

J. Vincent Keogh, U. S. Atty., of Brooklyn (Eli Resnikoff, Asst. U. S. Atty., of Brooklyn, of counsel), for defendant.

KENNEDY, District Judge.

The complaint in this action alleges that on February 8, 1945, one Peter Vambell, employed by the Federal Reserve Bank of New York, was injured near the loading platform of the General Post Office building at 33rd Street and Eighth Avenue, Borough of Manhattan, City of New York, as the result of the negligence of post office employees. It is averred that the plaintiff had, prior to that date, issued a workmen's compensation policy to Vambell's employer, and that pursuant to the policy Vambell received and accepted certain sums of money due him, but did not within one year after the accident bring suit against the defendant. It is said that the plaintiff filed its claim with the Post Office Department under date of April 26, 1946, but withdrew it on September 16, 1946. This claim asserted that plaintiff is the subrogee of Vambell. Workmen's Compensation Law of the State of New York, Consol.Laws, c. 67, § 29, par. 2.

Plaintiff believes it is entitled to maintain suit against the government under § 410 of the Federal Tort Claims Act, 28 U.S.C.A. § 931. Defendant, urging that the section last mentioned does not permit suit by a subrogee, but only by direct claimants, moves to dismiss the complaint. Plaintiff argues that not only under the express language of the Federal Tort Claims Act, but also by analogy with the Suits in Admiralty Act, 46 U.S.C.A. § 742, any subrogee is given the benefit of the government's waiver of immunity, equally with a person injured or killed (citing Phœnix Insurance Co. of Hartford v. United States, D.C. Conn. 1932, 3 F.Supp. 112; United States Fidelity & Guaranty Co. v. United States, D.C.S.D.N.Y. 1944, 56 F.Supp. 452, affirmed 2 Cir., 152 F.2d 46, and also a very recent case holding squarely that plaintiff's position is correct, and that a subrogee may maintain suit under the statute in question, namely, Hill v. United States, D.C.N.D. Tex., Amarillo Division, 1947, 74 F.Supp. 129).

As I see the problem, there is nothing before me but a question of interpretation of a statute. I am not impressed with the asserted analogy between the Suits in Admiralty Act and the statute upon which the complaint at bar is founded, so far as that analogy is said to support the right of a subrogee to sue. It can hardly be shown that there is a close analogy between a statute, on the one hand, like the Federal Tort Claims Act which gives the court of the United States jurisdiction to hear, determine and render judgment "on any claim against the United States, for money only, accruing on and after January 1, 1945, on account of damage to or loss of property or on account of personal injury or death", and, on the other hand, a statute which, like the Suits in Admiralty Act, provides for the bringing of a libel in personam against the United States in cases where "a proceeding in admiralty could be maintained" against private owners. It is true that both statutes to some extent put the government on the same footing as private persons so far as liability is concerned, the one providing for liability according to the lex loci delicti, and the other tacitly providing for liability according to admiralty concepts. But it seems to me that the language of the Suits in Admiralty Act is much broader than that found in the Federal Tort Claims Act.

Nor does the legislative history of the statute under discussion shed much light on its true meaning, although there are found in that history some passing references to the question whether Congress intended that subrogees might bring suit.

As I understand section 410 of the Federal Tort Claims Act, it raises the bar of sovereign immunity only...