The opinion of the court was delivered by: PLATT
This is an action under the Federal Tort Claims Act, as amended, 28 U.S.C. §§ 1346(b), 2401(b) and 2671 et seq., for property damage to a car owned by Dorothy Zarcadoolos which collided with a car owned by the United States Coast Guard. The plaintiff, Interboro Mutual Indemnity Insurance Company ("Interboro"), was Mrs. Zarcadoolos' insurance company and on paying her claim was subrogated to her rights.
The plaintiff has moved pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment, and the defendant has cross-moved pursuant to Rules 12(b)(1) and 12(h)(3) to dismiss the complaint for lack of jurisdiction.
On September 12, 1973, a car owned by Dorothy Zarcadoolos and driven by Peter Zarcadoolos collided with a car owned by the Coast Guard. Mr. Zarcadoolos was injured and the car was wrecked.
Mrs. Zarcadoolos reported the accident to her insurance company and on September 25, 1973, she executed a subrogation agreement with Interboro covering her property claim of $3,000. As her policy had a $100 deductible provision, Interboro mailed to her, and on October 4, 1973, she cashed, a check for $2,900.
On November 5, 1973, Mr. and Mrs. Zarcadoolos filed a claim for personal injuries and property damage with the United States. Mrs. Zarcadoolos filed for the property damage apparently without the knowledge or consent of Interboro but named Interboro as her insurance company on her claim form. Furthermore, on that form in response to the question, "If claim has been filed with your carrier, what action has your insurer taken or proposes to take with reference to your claim," Mrs. Zarcadoolos replied that "Insurance carrier has informed they are in process of making up a subrogated claim in accordance with their collision insurance policy."
On December 28, 1973, in a letter to Mrs. Zarcadoolos' attorney the Coast Guard denied both the personal injuries claim and the property damage claim. Interboro was apparently never notified of this denial.
On March 7, 1974, Mr. and Mrs. Zarcadoolos filed a suit for personal injuries and loss of services, but not for property damage. On September 30, 1975, the Zarcadoolos won a verdict on their claims.
On October 4, 1974, Interboro filed a claim for the property damage with the United States. On October 29, 1974, the Coast Guard responded that because they had already denied Mrs. Zarcadoolos' claim for the same property, "we are unable to act upon the claim which you submitted."
On June 2, 1975, Interboro filed the complaint in this action.
Title 28 United States Code Section 2401(b), as amended, states as follows:
"A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of ...