Adams v. United States, Civ. A. No. P-2717.

• Decision Date: 30 April 1965
• Docket Number: Civ. A. No. P-2717.
• Parties: James Robert ADAMS, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Illinois

241 F. Supp. 383

James Robert ADAMS, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. P-2717.

United States District Court S. D. Illinois, N. D.

April 30, 1965.

Wayne Hanold, Miller Westervelt & Johnson, Peoria, Ill., for plaintiff.

E. Michael O'Brien, Asst. U. S. Atty., Peoria, Ill., for defendant.

MERCER, Chief Judge.

This suit for damages under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., was filed by Adams against the United States. The complaint alleges that the damages were sustained as a proximate result of the negligent operation of an automobile by one Howard C. Glatthaar in the course of his employment as an employee of the United States.

The United States filed a third-party complaint against State Farm Mutual Automobile Insurance Company. The third-party complaint alleged that State Farm had issued a policy of liability insurance to Glatthaar upon the automobile involved in the collision, that the United States was "an insured" under the provisions of that policy and that State Farm had refused to defend the Adams suit upon the request of the United States. The complaint prays a judgment that the United States be indemnified by State Farm for any judgment which might be rendered against it and for the reasonable value of attorney's fees expended in the defense of the suit.

State Farm has moved to dismiss the third-party complaint in reliance upon the provision of the 1961 amendment to the Tort Claims Act which provides that the remedy of the Act permitting a suit against the United States is an exclusive remedy. 28 U.S.C. § 2679(b)-(e). The effect of the 1961 amendment is to insulate an employee from personal liability for injuries to others arising out of his employment by the United States. In such circumstances, a suit for damages lies against the United States, not against the employee. Uptagrafft v. United States, 4 Cir., 315 F.2d 200; Santoro v. United States, N.D.Ill., 229 F.Supp. 707. State Farm's position in a nutshell is that the statutory insulation of Glatthaar against personal liability for the occurrence also insulates State Farm as Glatthaar's insurer. It contends, as a matter of law, that it has no obligation to defend the pending suit and is not liable under its policy of insurance for any judgment which might be rendered against the United States.

In every reported case in which this question has arisen under the omnibus clause of an insurance policy identical or similar to the omnibus clause here involved, the courts have held that the United States is "an insured" under the employee's policy of insurance. McCrary v. United States, E.D.Tenn., 235 F.Supp. 33; Patterson v. United States, E.D. Tenn., 233 F.Supp. 447; Barker v. United States, N.D.Ga., 233 F.Supp. 455; Gahagan v. State Farm Mut. Auto. Ins. Co., W.D.La., 233 F.Supp. 171; Nistendirk v. McGee, W.D.Mo., 225 F.Supp. 883; Vaughn v. United States, W.D.Tenn., 225 F.Supp. 890. The only dissent from that result is expressed in McCrary, wherein Judge Neese expounds his disagreement with the principle of coverage for the United States, though he held that the United States was an insured upon the authority of Vaughn and Patterson. Compare, Gipson v. Shelley, E.D.Tenn., 219 F.Supp. 915, 916.

The omnibus clause of the policy of insurance issued by State Farm to Glatthaar defines the word "insured" in the following language: "* * * the unqualified word `insured' includes (1) the named insured and also includes * * * (4) under coverages (A) and (B) any person or organization legally responsible for the use thereof the automobile by an insured as defined" above.

Under coverages A and B of this policy State Farm agreed by its policy "(1) to pay all damages which the insured shall become legally obligated to pay because of (A) Bodily injury sustained by other persons, and (B) Injury to or destruction of property of others, caused by accident arising out of the ownership, maintenance or use * * * of the owned automobile", and, inter alia, "to defend any suit" against "the i...