United States v. Commercial Union Insurance Group

• Decision Date: 03 January 1969
• Docket Number: No. 67 Civ. 4684.,67 Civ. 4684.
• Parties: UNITED STATES of America, Plaintiff, v. COMMERCIAL UNION INSURANCE GROUP, Defendant.
• Court: U.S. District Court — Southern District of New York

294 F. Supp. 768

UNITED STATES of America, Plaintiff, v. COMMERCIAL UNION INSURANCE GROUP, Defendant.

No. 67 Civ. 4684.

United States District Court S. D. New York.

January 3, 1969.

Robert M. Morgenthau, U. S. Atty. for the Southern District of New York, for plaintiff, by Michael D. Hess, Asst. U. S. Atty., New York City.

Francis J. Heneghan, New York City, for defendant; Carole R. Moskowitz, Jamaica, N. Y., of counsel.

MANSFIELD, District Judge.

In this action pursuant to 42 U.S.C. § 2651 for recovery from an insurance carrier of the reasonable value of hospital and medical care and supplies furnished to a postal employee, Salva T. Tortorici, the Government has moved for summary judgment. Section 2651 provides:

"§ 2651. RECOVERY BY UNITED STATES—CONDITIONS; EXCEPTIONS; PERSONS LIABLE; AMOUNT OF RECOVERY; SUBROGATION; ASSIGNMENT

"(a) In any case in which the United States is authorized or required by law to furnish hospital, medical, surgical, or dental care and treatment (including prostheses and medical appliances) to a person who is injured or suffers a disease, after the effective date of this Act, under circumstances creating a tort liability upon some third person (other than or in addition to the United States and except employers of seamen treated under the provisions of section 249 of this title) to pay damages therefor, the United States shall have a right to recover from said third person the reasonable value of the care and treatment so furnished or to be furnished and shall, as to this right be subrogated to any right or claim that the injured or diseased person, his guardian, personal representative, estate dependents, or survivors has against such third person to the extent of the reasonable value of the care and treatment so furnished or to be furnished. The head of the department or agency of the United States furnishing such care or treatment may also require the injured or diseased person, his guardian, personal representative, estate, dependents, or survivors, as appropriate, to assign his claim or cause of action against the third person to the extent of that right or claim."

The undisputed facts are as follows:

On June 4, 1966, Mr. Tortorici, acting in the course of his employment as an employee of the United States Post Office, was driving a mail truck on a street in Brooklyn. In an effort to avoid hitting a taxicab that suddenly cut in front of him, he swerved, ran into two parked cars, and was thrown out of his truck, suffering injuries. The taxicab left the scene. As a result of the accident Tortorici was hospitalized at the United States Public Health Service Hospital, Staten Island, which described the accident as follows in its "Third Party Report":

"Independent cab driver cut in front of postal truck—swerved to the right to avoid hitting cab, thereby hitting two parked cars.

"Cab driver listed as hit and run."

The hospital provided medical care and treatment amounting to $1,936, pursuant to 5 U.S.C. § 8103 and 42 U.S.C. § 251. Thereafter Mr. Tortorici, in accordance with 42 U.S.C. §§ 2651-2653, executed a written assignment assigning to the Government any claim he had for the reasonable value of hospital and medical care.

At the time of the accident defendant insurer had issued a family combination automobile policy in favor of Tortorici covering liability for personal injury, property damage and medical payments. The policy obligated defendant to pay up to certain specific limits to the "insured" which was defined to include not only Mr. Tortorici and guests but also

"Any person with respect to damages he is entitled to recover for care or loss of services because of bodily injury to which this coverage applies."

Coverage "J" of the policy, known as "Protection Against Uninsured Motorists," obligated defendant

"To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, * * * sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile. * * *"

An uninsured automobile was defined by the policy to include "a hit and run automobile" (Coverage J(2) (b)), defined as follows:

"`hit-and-run automobile' means an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident, provided: (a) there cannot be ascertained the identity of either the operator or the owner of such `hit-and-run automobile' * *."

Tortorici asserted a claim under the Uninsured Motorist provision of his policy, which was settled by defendant's making payment to him of $8,064 on December 7, 1966.

Plaintiff claims that it is entitled to be treated as an "insured" under the policy for the reason that the Government is a "person" as that term is used in the policy, Government Employees Insurance Co. v. United States, 376 F.2d 836 (4th Cir. 1967); Government Employees Insurance Co. v. United States, 349 F.2d 83 (10th Cir. 1965), cert. denied, 382 U.S. 1026, 86 S.Ct. 646, 15 L.Ed.2d 539, rehearing denied, 383 U.S. 939, 86 S.Ct. 1064, 15 L.Ed.2d 857 (1968), and under 42 U.S.C. §§ 2651-2653 it may recover from an uninsured motorist for hospital and medical care furnished to the insured because of bodily injuries sustained by the insured as a result of the use of an "uninsured automobile". We agree and so conclude. See Government Employees Insurance Co. v. United States, 376 F.2d 836, 837 (4th Cir. 1967); Bernzweig, "An Analysis and Interpretation of the Federal Medical Recovery Act," 64 Colum.L.Rev. 1257, 1268 (1964). The terms of the Uninsured Motorist provision must be construed in favor of the insured, see Ashland Oil and Refining Co. v. Travelers Insurance Co., 368 F.2d 821 (2d Cir. 1966). The interpretation of the policy urged by defendant would defeat the purposes of the Insurance Law of the State of New York, McKinney's Consol. Laws, c. 28, §§ 167(2-a) and 600 and the federal Medical Care Recovery Act, 42 U.S.C. § 2651.

Defendant denies liability on the grounds (1) that plaintiff is expressly excluded from the policy's coverage under "exclusion (c)" of the policy, (2) that an issue of fact exists as to whether Tortorici's bodily injuries were caused by an uninsured vehicle, i. e., a "hit and run automobile" as that term is defined in the policy, and (3) that some issues ...