Hanley v. Condrey, 784
| Decision Date | 11 August 1972 |
| Docket Number | No. 784,Docket 71-1911.,784 |
| Citation | 467 F.2d 697 |
| Parties | Dennis P. HANLEY and William C. Swerbenski, Plaintiffs-Appellants, and United States of America, Intervening Plaintiff-Appellee, v. David L. CONDREY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
William F. McNulty, New York City (Hampton & Dietel, New York City, of counsel), for defendant-appellee.
William E. Fuller, New York City (Fuller, Lawton & Moyles, New York City, of counsel), for plaintiffs-appellants.
David Paget, Asst. U. S. Atty., New York City (Whitney North Seymour, Jr., U. S. Atty., S. D. New York, New York City, and Michael D. Hess, Asst. U. S. Atty., of counsel), for intervening plaintiff-appellee.
Before MOORE, SMITH and TIMBERS, Circuit Judges.
Dennis P. Hanley and William C. Swerbenski appeal from a summary judgment entered in the United States District Court for the Southern District of New York. The appellants filed a complaint on July 5, 1966, to recover damages arising out of an automobile accident with the defendant-appellee David L. Condrey. On November 8, 1968, the United States filed an intervening complaint in order to protect its interest in monies expended for hospital care for the two plaintiffs, who were Coast Guardsmen at the time of the accident. In June of 1967 the action was settled. Releases were thereupon delivered, settlement letters exchanged and the settlement checks were paid. On September 21, 1967, a "Complaint for Declaratory Judgment" against the United States of America (U.S.A.) and The Employers Liability Assurance Corporation Ltd. (the Insurance Company) was filed on behalf of plaintiffs. The dispute involved two checks drawn to the order of "DHEW-Public Health Service" for $1,484.00 and $2,144.00 in payment of HEW's medical claim for hospital services rendered to the two plaintiff Coast Guardsmen, who had been injured in an accident, giving rise to the medical services.
Under the Medical Care Recovery Act, 42 U.S.C. § 2651 et seq., the government is entitled to recover from the "third person" responsible for the "tort liability", "the reasonable value of the care and treatment" furnished to its servicemen.
This claim was recognized in the original complaint by the three injured servicemen. Hanley, Swerbenski and Boehler against the tortfeasor David L. Condrey wherein HEW's claim for medical care is asserted under 42 U.S.C. §§ 2651-2653 in the respective sums of $1,484 (Hanley) $2,144 (Swerbenski) and $406 (Boehler).
Upon the overall settlement for $18,500 (defendant's policy offered $20,000 protection), checks were drawn as follows:
Hanley claim
Check for $5,916 to the order of Hanley and his attorney William E. Fuller.
Check to HEW for medical care in the amount of $1,484.
Swerbenski claim
Check for $6,181 to the order of Swerbenski and his attorney William E. Fuller.
Check to HEW for medical care in the amount of $2,144.
Boehler claim
This claim, settled for $2,775, of which $406 was to be paid to HEW, is not involved in the appeal.
Releases reciting the settlement payments were delivered by Hanley and Swerbenski to Condrey and the Insurance Company and the action was terminated.
In his Closing Statement to the Judicial Conference of the State of New York, plaintiffs' attorney disclosed that of the $7,400 he retained $2,466.67 as compensation, paid another attorney $50 and paid Hanley $3,327.60. He referred to the HEW check as a contested claim and stated that he was "Holding check." A similar statement relating to Swerbenski disclosed an $8,325 settlement, $2,775 to the attorney, $50 to another attorney and $3,140 to Swerbenski. The HEW check which he was holding was in the amount of $2,144.
The statements were dated June 23, 1967.
When the "settled" action came on before Judge Levet for trial, it became quite evident that the original negligence action had been settled, the checks cashed, releases delivered and the case terminated. In complete repudiation of the terms of the settlement and the provisions of the Medical...
To continue reading
Request your trial
- Faircloth v. LAMB-GRAYS HARBOR COMPANY, INC.
-
Slavin v. Curry
...a trial Court's denial of a motion for new trial, must determine whether the trial court has abused its discretion. Hanley v. Condrey, 467 F.2d 697 (5th Cir. 1972). Moreover, in reviewing a motion for new trial based upon allegations that witnesses gave perjured testimony, this Court has he......
-
Lepucki v. Van Wormer
...We initially note that courts require notice and a hearing before they impose costs and fees against an attorney. Cf. Hanley v. Condrey, 467 F.2d 697 (2d Cir.1972); Miles v. Dickson, 387 F.2d 716 (5th Cir.1967). While the Notes of the Advisory Committee on Rule 11 point out that the procedu......