Moore, Smith and Timbers, Circuit Judges.
Dennis P. Hanley and William C. Swerbenski appeal from a summary judgment entered in the United States District Court for the Southern District of New York. The appellants filed a complaint on July 5, 1966, to recover damages arising out of an automobile accident with the defendant-appellee David L. Condrey. On November 8, 1968, the United States filed an intervening complaint in order to protect its interest in monies expended for hospital care for the two plaintiffs, who were Coast Guardsmen at the time of the accident. In June of 1967 the action was settled. Releases were thereupon delivered, settlement letters exchanged and the settlement checks were paid. On September 21, 1967, a "Complaint for Declaratory Judgment" against the United States of America (U.S.A.) and The Employers Liability Assurance Corporation Ltd. (the Insurance Company) was filed on behalf of plaintiffs. The dispute involved two checks drawn to the order of "DHEW-Public Health Service" for $1,484.00 and $2,144.00 in payment of HEW's medical claim for hospital services rendered to the two plaintiff Coast Guardsmen, who had been injured in an accident, giving rise to the medical services.
Under the Medical Care Recovery Act, 42 U.S.C. § 2651 et seq., the government is entitled to recover from the "third person" responsible for the "tort liability", "the reasonable value of the care and treatment" furnished to its servicemen.
This claim was recognized in the original complaint by the three injured servicemen. Hanley, Swerbenski and Boehler against the tortfeasor David L. Condrey wherein HEW's claim for medical care is asserted under 42 U.S.C. §§ 2651-2653 in the respective sums of $1,484 (Hanley) $2,144 (Swerbenski) and $406 (Boehler).
Upon the overall settlement for $18,500 (defendant's policy offered $20,000 protection), checks were drawn as follows:
Check for $5,916 to the order of Hanley and his attorney William E. Fuller.
Check to HEW for medical care in the amount of $1,484.
Check for $6,181 to the order of Swerbenski and his attorney William E. Fuller.
Check to HEW for medical care in the amount of $2,144.
This claim, settled for $2,775, of which $406 was to be paid to HEW, is not involved in the appeal.
Releases reciting the settlement payments were delivered by Hanley and Swerbenski to Condrey and the Insurance Company ...