United States v. Hartford Accident and Indemnity Co., 71-1234.

• Decision Date: 10 April 1972
• Docket Number: No. 71-1234.,71-1234.
• Citation: 460 F.2d 17
• Parties: UNITED STATES of America, Appellant, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

460 F.2d 17 (1972)

UNITED STATES of America, Appellant, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, a corporation, Appellee.

No. 71-1234.

United States Court of Appeals, Ninth Circuit.

April 10, 1972.

Raymond D. Battochi (argued), Morton Hollander, Daniel Joseph, L. Patrick Gray, III, Asst. Atty. Gen., Washington, D. C., Dwayne Keyes, U. S. Atty., Richard W. Nichols, Asst. U. S. Atty., Sacramento, Cal., for appellant.

James E. Martin (argued), Jackson C. Davis, of Cresswell, Davis & Lamborn, Oakland, Cal., for appellee.

Before MERRILL and KILKENNY, Circuit Judges, and LYDICK,^* District Judge.

LYDICK, District Judge:

This is an appeal by the United States of America from a District Court order, 320 F.Supp. 648, denying it recovery under the California Uninsured Motorist Law and the terms of a policy of insurance issued by Hartford Accident and Indemnity Company to Willard J. Rogers and his wife. The United States seeks recovery of medical benefits paid by the United States to Mrs. Rogers as a serviceman's wife under the Federal Medical Care Recovery Act, 42 U.S.C. § 2651 et seq.

The facts, briefly stated, are: Hartford issued to Mr. and Mrs. Rogers, residents of California, an automobile liability insurance policy which included, as required by California law,¹ a provision insuring against injury and damage sustained as the result of negligent acts of uninsured motorists. On May 14, 1967, while so insured, Mrs. Rogers, riding in a car driven by her husband, was injured in an automobile accident caused by the negligence of an uninsured motorist. On January 24, 1968, Hartford made a settlement with Mrs. Rogers paying her $9,950.00 of its total policy exposure of $10,000. Mrs. Rogers was entitled to and received medical care and treatment from the United States valued at $1,968.26. On April 16, 1968, the United States gave Hartford notice of its claim. Hartford denied liability and on August 21, 1969 the United States filed its action in the Court below to recover its payments to Mrs. Rogers from Hartford.

Under present California law uninsured motorists coverage is required in all automobile insurance policies unless waived in writing by the insured. The policy here involved provided that, in case of injury and damage, an insured would be paid the amount he would be legally entitled to recover from the uninsured motorist.

That same law provides that no cause of action shall accrue to the insured under any policy or endorsement provision issued pursuant thereto unless within one year from the date of the accident suit has been filed in a court of competent jurisdiction.

Hartford based its denial of liability to the United States on two grounds: First, that the United States was not an insured within the meaning of the policy or the California Insurance Code; and, second, that no cause of action had accrued to the United States because it had not filed its suit within one year from the date of the accident.

On cross-motions for summary judgment, the District Court held that (1) the United States was an insured under the policy, but (2) was barred from recovery because of its failure to comply with the provision of the California Insurance Code requiring it to bring suit within one year.

The issue on appeal to this Court is whether or not the Court below erred in its holding that the United States was barred from recovery because of its failure to comply with the California Insurance Code regarding the filing of suit.

The United States contends that the California Insurance Code section involved is a statute of limitations and that, because of 28 U.S.C. § 2415 and U. S. v. Summerlin, 310 U.S. 414, 60 S.Ct. 1019, 84 L.Ed. 1283 (1940), it is thoroughly settled that the United States is not subject to state statutes of limitations.

The defect in that contention is not in the authority cited but in the designation of California Insurance Code Section 11580.2 as a statute of limitations.

Prior to the enactment of that section, neither insureds such as the Rogers nor one claiming through them such as appellant had any rights against a liability insurer for injury or damage caused by uninsured motorists unless such rights were specifically contained in the contract of insurance. Few contracts of liability insurance provided such coverage, and it was for this reason that California, by the enactment of California Insurance...