Uptagrafft v. United States
Decision Date | 07 March 1963 |
Docket Number | No. 8810.,8810. |
Citation | 315 F.2d 200 |
Parties | Burnell Keath UPTAGRAFFT, and State Farm Mutual Auto Insurance Company, Appellants, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Fourth Circuit |
Harry E. McCoy, Norfolk, Va. (E. Page Preston, John M. Cloud, Preston & Preston, and Seawell, McCoy, Winston & Dalton, Norfolk, Va., on brief), for appellants.
Mark R. Joelson, Attorney, Department of Justice (Joseph D. Guilfoyle, Acting Asst. Atty. Gen., Claude V. Spratley, Jr., U.S. Atty., and Morton Hollander, Attorney, Department of Justice, on brief), for appellee.
Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and CRAVEN, District Judge.
James W. Edwards sustained personal injuries in an automobile wreck and thereby acquired a tort claim against Burnell K. Uptagrafft and his employer, United States of America. Edwards could have sued the United States under the Tort Claims Act, 28 U.S.C.A. § 1346 et seq. Government Employees Ins. Co. v. Ziarno, 273 F.2d 645, 647 (2d Cir., 1959). Instead, for reasons sufficient to him and unknown to the court, he elected to sue Uptagrafft. Although requested to do so, and despite the fact that Uptagrafft was driving a government-owned vehicle, the United States refused to assume defense of the case on behalf of Uptagrafft. Thereupon, pursuant to the "driver other car" provision of its policy, State Farm Mutual Auto Insurance Company (hereinafter referred to as State Farm) assumed the defense of the lawsuit and before trial negotiated a reasonable settlement, paying $17,115.96 to accomplish the same.
Whether the United States might have escaped liability under the exception of 28 U.S.C.A. § 2680(h) was not determined in the court below, and for purposes of this appeal it is assumed that Uptagrafft was acting within the scope of his employment as an Alcohol and Tobacco Tax Unit Agent of the United States, under circumstances where the United States, if a private person, would have been liable to claimant on the theory of respondeat superior.
After the case was removed from the state court to the United States district court, Uptagrafft obtained an order impleading the United States as a third-party defendant. Subsequently, State Farm was permitted to intervene, after it had paid the negotiated settlement disposing of Edwards' claim, so that Uptagrafft and State Farm jointly seek now to recoup from the United States the sum of $17,115.96 paid by State Farm to dispose of the Edwards claim.
The Government moved to dismiss the complaint on the grounds that (1) there was no right of indemnity or exoneration in this case against the United States, (2) there was no contractual arrangement, either express or implied, under which the third-party plaintiffs might claim indemnity from or exoneration by the United States, (3) Rule 14(a) did not permit joinder of the Government as a third-party defendant for the reason that whatever the Government's liability to Edwards might have been in an independent suit, it had no liability to the third-party plaintiffs.
Treating the Government's motion as one for summary judgment, the district judge dismissed the third-party complaint, ruling that there was no theory upon which indemnity or exoneration could be allowed. It is from this ruling that the instant appeal is taken.1
Uptagrafft and State Farm urge that:
By the Federal Tort Claims Act the United States has consented to suit in tort only "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S. C.A. § 1346(b) et seq.
In answer to appellants' contention for indemnity and/or exoneration, we adopt the view expressed by Judge Hoffman in his memorandum opinion:
.
By its own explicit language, the Act waives the Government's immunity from suit in favor of an injured person. The same waiver operates with respect to...
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