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UNITED STATES v. COMMERCIAL UNION INS. GROUP

January 3, 1969

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



The opinion of the court was delivered by: MANSFIELD

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 ...


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