Allen v. US
| Citation | 668 F. Supp. 1242 |
| Decision Date | 03 September 1987 |
| Docket Number | No. 86-C-259-C.,86-C-259-C. |
| Parties | Thomas H. ALLEN III, Personal Representative of the Estate of Barbara Allen, and Kathleen M. Allen, the dependent beneficiary of Barbara Allen, Plaintiffs, v. UNITED STATES of America, United Services Automobile Association (a/k/a USAA), a reciprocal exchange company, the Board of Regents of the University of Wisconsin System, on behalf of the University of Wisconsin Hospital and Clinics, and Affiliated University Physicians, a non-profit organization, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
COPYRIGHT MATERIAL OMITTED
Eric A. Farnsworth, DeWitt, Sundby, Huggett, Schumacher & Morgan, S.C., Madison, Wis., for plaintiffs.
David Sarnacki, Ass't U.S. Atty., Madison, Wis., for U.S.
David J. Schwartz, Louderman, Hayes, Van Camp, Priester, Strother & Schwartz, Madison, Wis., for Affiliated Univ. Physicians.
Harry Sauthoff, Thurow, Sauthoff and Alexander, Madison, Wis., for United Services Auto. Ass'n.
Charles Larsen, Asst. Atty. Gen. Madison, Wis., for Bd. of Regents of Univ. System.
Sept. 1, 1987.
In a Report and Recommendation entered herein on August 7, 1987, the United States Magistrate recommended denial of the motion for summary judgment of the United States. None of the parties has objected to the recommendation. Plaintiffs have objected to one finding of the magistrate, which they characterize as parenthetical, and have also asked for the entry of partial summary judgment in their favor on two issues: the applicability of the Federal Medical Care Recovery Act, 42 U.S.C. § 2651 et seq., to a claim against an insured serviceman and the priority of government claims under the Act.
From my own review of the magistrate's report and the parties' briefs, I am prepared to adopt the magistrate's report as the court's own, with the clarification requested by plaintiffs. The magistrate's analysis of the applicable statutes is thorough and persuasive. I agree with him that Congress did not intend that "third party," as used in § 2651 would apply to an insured whose negligence was responsible for the injuries and damages covered by the insurance policy. With respect to plaintiffs' request for clarification, I do not understand the magistrate to recommend a construction of either 42 U.S.C. § 2651 or § 2652 that would deprive Kathleen Allen of any right to receive the proceeds of the insurance policy at issue as against the United States to the extent that she has suffered pecuniary damages for the loss of the society and companionship of her mother. To the extent that the magistrate's comment in the next to last paragraph of his opinion suggests that Kathleen Allen would not be an "injured person" under 42 U.S.C. § 2652, I do not adopt the comment.
It is proper for a court to enter summary judgment for a non-moving party if the undisputed facts and the law support it. In this case, there is no dispute about the facts material to the question of the priority of the interest of the United States in the insurance proceeds, and the law supports the interpretation of § 2651 set forth by the magistrate. Therefore, I will grant partial summary judgment to plaintiffs on those two issues, as they have requested.
IT IS ORDERED that the Report and Recommendation of the United States Magistrate, entered herein on August 7, 1987, is ADOPTED as the court's own, with the one clarification set forth above. FURTHER, IT IS ORDERED that the motion of the United States for summary judgment is DENIED and the motion of the plaintiffs for partial summary judgment is GRANTED on the issues of the applicability of the Federal Medical Care Recovery Act, 42 U.S.C. § 2651 et seq., to claims against insured servicemen and the priority of government claims under the Act.
The Clerk of Court is directed to schedule a status conference in this case for the purpose of scheduling further proceedings in the case.
JAMES GROH, United States Magistrate.
Plaintiffs Thomas Allen, as Personal Representative of the Estate of Barbara Allen, and Kathleen Allen bring this civil action seeking a declaration of their rights vis-a-vis the remaining defendants with respect to the proceeds of an insurance policy issued by defendant USAA, which proceeds have been paid over to the Clerk of Court. One of the defendants, the United States of America, has filed a motion for summary judgment. (Dkt. # 29) The government asserts that it is entitled under the Federal Medical Care Recovery Act (42 U.S.C. § 2651 et seq.) to be reimbursed, from the said proceeds, for sums it expended for the care of Barbara Allen in connection with injuries she suffered through the negligence of her husband, a retired Marine officer, in an automobile accident. The government also urges that its entitlement is prior to that of any other party, in the event the deposited funds are insufficient to satisfy the claims of all.
Based on the parties' proposed facts and the record in the case, I find the following facts for the sole purpose of deciding this motion:
FINDINGS OF FACT
1. Plaintiff Thomas H. Allen III is an adult resident of the State of Wisconsin and brings this action as the duly appointed representative of the estate of Barbara Allen. Plaintiff Kathleen Allen is an adult resident of the State of Wisconsin and asserts her claim as a dependent child of Barbara Allen at the time of Barbara Allen's death. (Compl. ¶¶ 2, 3)1
2. Defendant United States of America administers the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS). 10 U.S.C. § 1072(4). Barbara Allen, her husband, retired Lt. Col. Thomas H. Allen, Jr. of the United States Marine Corps, and their children were covered by CHAMPUS as a military family for a specified portion of health care obtained by them from civilian hospitals and doctors. (Compl. ¶ 10; Gov't Answer ¶ 10, Dkt. # 15)
3. United States Automobile Association (USAA) is a Texas insurance corporation with its principal place of business in the state of Texas. USAA issued a policy of automobile insurance to Col. Allen, which afforded liability, medical payments and accidental death coverage. 2
4. The Board of Regents of the University of Wisconsin Systems (the Board) maintains the University of Wisconsin Hospital & Clinics in Madison, Wisconsin, and provided medical services to Barbara Allen prior to her death, a portion of which was paid for under CHAMPUS. (Compl. ¶¶ 7, 12-13; Board Answer ¶ 1, Dkt. # 7; Gov't Prop.Facts ¶ 8; Board Response ¶ 1, Dkt. # 36)
5. Affiliated University Physicians (Affiliated) is a non-profit Wisconsin corporation with its principal place of business in Madison, Wisconsin. Affiliated conducts a billing service for physicians of the University of Wisconsin Hospital & Clinics, which physicians provided medical services to Barbara Allen prior to her death, a portion of which was paid for under CHAMPUS. (Compl. ¶¶ 8, 12; Affiliated Answer ¶¶ 1-3, Dkt. # 9)
6. Jurisdiction exists pursuant to 28 U.S.C. § 1331.
7. On January 24, 1985, in Dane County, Wisconsin, Barbara Allen was a passenger in an automobile operated by Col. Allen. Due to Col. Allen's negligence, his automobile collided with another automobile. Col. Allen was killed instantly. Barbara Allen suffered serious injuries as a result of the accident and died about one month later, on February 21, 1985. (Gov't Prop.Facts ¶¶ 4-6)
8. Because of Col. Allen's status as a Marine Corps retiree, the United States was authorized and required by law to provide, and did provide, medical care and treatment to Barbara Allen to the extent of $94,138.28 through CHAMPUS prior to her death from the injuries sustained in the automobile accident. (Gov't Prop.Facts ¶¶ 3, 8; Pl.Response ¶ 8, Dkt. # 34; Board Response ¶ 1; Affiliated Response)
9. Apart from the medical care provided at government expense, Mrs. Allen's estate was entitled to, or has made claim for, certain payments from USAA under the automobile policy. The policy provides liability coverage in the amount of $100,000, medical payments coverage in the amount of $20,000 (including $10,000 from a seat belt endorsement), and a $10,000 death benefit . USAA does not contest its obligation to pay the above amounts under the policy and has paid the said sum ($130,000) to the Clerk of Court to be distributed as the court may order. (Stipulation and Order dated May 12, 1986 (Dkt. ## 5 & 6))
10. The instant lawsuit was filed on April 17, 1986, by Thomas Allen III, on behalf of Barbara Allen, as personal representative of her estate, and Kathleen Allen, on her own behalf, as a dependent child of Barbara Allen. Plaintiffs seek a declaration of their rights to the USAA insurance proceeds as against the claim of the United States and the claims of Affiliated and the Board, for the unpaid portions of the health care rendered to Barbara Allen. The government claims an interest in the policy proceeds to the extent of $94,138.28; Affiliated claims an interest of $11,391.06; and the Board claims an interest of $28,573.26. The Estate of Barbara Allen asserts an as yet unliquidated claim against the proceeds for the conscious pain and suffering of Barbara Allen. Kathleen Allen asserts an unliquidated claim for pecuniary damages for loss of the society and companionship of Barbara Allen, pursuant to Wis.Stat. 895.04. The aggregate of the claims of all the parties exceed the maximum amount of USAA's obligation under the policy—the $130,000 paid into the court.3
The government contends that it is entitled to judgment as a matter of law on its claim of $92,138.28 against the USAA policy proceeds, and that no issue of fact remains to be resolved with respect to that issue.4 It bases its entitlement on the Federal Medical Care Recovery Act (hereafter, FMCRA or the "Act"), 42 U.S.C....
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