Lefebvre v. Government Emp. Ins. Co.

• Decision Date: 28 November 1969
• Docket Number: No. 5982,5982
• Citation: 110 N.H. 23,259 A.2d 133
• Parties: Philip LEFEBVRE v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
• Court: New Hampshire Supreme Court

Page 133

259 A.2d 133

110 N.H. 23

Philip LEFEBVRE v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.

No. 5982.

Supreme Court of New Hampshire.

Argued Nov. 4, 1969.

Decided Nov. 28, 1969.

Shaines, Madrigan & McEachern and Craig E. Turner, Portsmouth, for plaintiff.

Boynton, Waldron & Dill, ,Portsmouth (Richard E. Dill, Portsmoutn, Orally), for defendant.

GRIMES, Justice.

This is an action by a military serviceman to recover under the medical payments coverage of his automobile liability insurance policy, the value of medical services rendered to his wife by the United States Government under U.S.C.A. Title 10, Section 1076. The matter was submitted on stipulations of fact and transferred here without ruling by Leahy, C.J.

The plaintiff's wife was injured on September 15, 1966, when as a pedestrian she was struck by an automobile operated by one Berkowitz. She spent 18 days in the Chelsea Neval Hospital and was treated as an outpatient there for 12 more days. The reasonable value of this service was determined to be $918.00. Except for $31.50 she was, as the wife of a serviceman, entitled to receive these services without charge to her or the plaintiff. The plaintiff had incurred an expense of $365.00 for civilian treatment of his wife and this amount has been paid by the defendant out of the $1,000.00 limit of its coverage which within that limit obligated the defendant 'to pay all reasonable expenses incurred within one (1) year from the date of accident * * *.' The defendant contends that the plaintiff has not incurred any expense with respect to the services provided by the United States of America except the $31.50 which it offers to pay.

42 U.S.C.A. §§ 2651-2653 provide that where medical services are furnished to one who was injured 'under circumstances creating a tort liability upon some third person * * * the United States shall have a right to recover from said third person the reasonable value of the care and treatment so furnished * * * and shall, as to this right be subrogated to any right or claim that the injured * * * person * * * has against such third person * * *.' It further provides that the injured person may be required 'to assign his claim or cause of action against the third person to the extent of that right or claim.'

By letter dated April 7, 1967, the Air Force advised plaintiff's wife of the right of the United States to recover from the third party tort-feasor the value of the services furnished to her and on the same date notified her attorney of the claim and requested him to represent the United States by including its claim in the demand against the third person in any action brought against him, rather than have the United States institute a separate action. Plaintiff's wife assigned to the United States her rights to any third party recovery as to the value of the governmentally furnished medical services as required by the statute. Claim was made on behalf of the plaintiff for consequential damages and his wife for eprsonal injuries against Berkowitz on or about July 14, 1967 and the claim of the United States was included. There was a settlement in the amount of $9,500 out of which plaintiff's attorney remitted $918 to the U.S Air Force which gave a 'limited release' to Berkowitz's insurance company.

Under the terms of the policy the defendant is obligated to pay the plaintiff more than $31.50 only if he 'incurred' medical expenses in excess of that amount as a result of the...