Irby v. Government Emp. Ins. Co.

• Citation: 175 So.2d 9
• Decision Date: 03 May 1965
• Docket Number: No. 1782,1782
• Parties: Harvey L. IRBY v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
• Court: Court of Appeal of Louisiana — District of US

Page 9

175 So.2d 9

Harvey L. IRBY v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.

No. 1782.

Court of Appeal of Louisiana, Fourth Circuit.

May 3, 1965.

James J. Gleason, III, New Orleans, for plaintiff-appellee.

Hammett, Leake & Hammett, Robert E. Leake, Jr., New Orleans for defendant-appellant.

Before McBRIDE, SAMUEL and HALL, JJ.

SAMUEL, Judge.

This is a suit on a policy of automobile liability insurance issued to the plaintiff by the defendant. Plaintiff was injured in an automobile accident while he was on active duty with the United States Coast Guard. He was treated in a local United States Public Health Service Hospital for the injuries sustained in the accident. The reasonable value of the care and treatment furnished by the hospital was $312. The respective claims against the tort-feasor and his insurer, that of plaintiff for personal injuries and that of the United States, through the Department of Health, Education and Welfare, in the amount of $312 for hospital care and treatment, were settled.

Plaintiff then brought this action under the medical payments provision of his policy with the defendant seeking to recover for himself the sum of $312, the value of the medical and hospital services he had received, plus penalties and attorney's fees. There was judgment in the trial court on the merits in favor of plaintiff as prayed. Defendant has appealed therefrom contending the policy provides only for reimbursement of 'incurred' medical and hospital expenses, plaintiff never 'incurred' any such expenses, and therefore the judgment appealed from should be reversed.

Under the pertinent portion of the policy's medical payments provision the insurer is required to pay to the insured, who has sustained bodily injury caused by accident, '* * * all reasonable expenses incurred * * * for necessary medical, surgical, X-ray and dental services, * * * and necessary ambulance, hospital, professional nursing and funeral services: * * *.' As established by the record and under the provisions of a Federal statute, 42 U.S.C.A. § 253, plaintiff was never charged with the medical and hospital services he received and, because of his status as a member of the United States Coast Guard on active duty, he was under no obligation to pay for those services; the government was required to furnish them without charge. Another Federal statute, 42 U.S.C.A. § 2651, provides that when the United States is required to furnish hospital and medical care and treatment under circumstances creating a tort liability upon a third person (as is the case here), the United States has the right to recover from the third person the reasonable value of the care and treatment so furnished and, as to this right, is subrogated to any right or claim possessed by the injured person.

As used in the policy in suit, the word 'incurred' emphasizes the idea of liability and the definition of 'incur' is: 'To have liabilities (or a liability) thrust upon one by act or operation of law'; a thing for which there exists no obligation to pay, either express or implied, cannot in law constitute an 'incurred expense'; a debt or expense has been incurred only when liability attaches. Drearr v. Connecticut General Life Insurance Co., La.App., 119 So.2d 149; United States v. St. Paul Mercury Indemnity Co., 8 Cir., 238 F.2d 594; see also Stuyvesant Insurance Co. of New York v. Nardelli, 5 Cir., 286 F.2d 600, 603.

The instant case in its entirety is based on the contract of insurance between the litigants. If the defendant is not bound by that contract to pay, or to reimburse plaintiff for, the cost of the medical and hospital services plaintiff seeks to recover by this suit, there must be judgment for the defendant. As the policy requires payment by the defendant only of 'incurred' expenses and as plaintiff never was under any obligation to pay the medical and hospital expenses and therefore never 'incurred' the same, the defendant cannot be forced to pay under its...