The opinion of the court was delivered by: Sharon E. Grubin, United States Magistrate Judge:
This case, brought under the Federal Tort Claims Act,
involves a relatively minor collision between a United States
postal truck and a privately-owned automobile, but implicates
important issues concerning the New York State "no-fault"
insurance statute and the doctrines of preemption and sovereign
immunity. Originally filed in the Civil Court of the City of
New York against the driver of the truck, the action was
removed to this court by the United States, after it
substituted itself as defendant, and tried before me without a
Plaintiff, Marvin Patrello, was the owner of a 1979 Dodge
Omni which his wife, third-party defendant and counterclaimant
Judy Patrello, was driving on April 16, 1986. The trial
evidence shows that at approximately 12:45 p.m. Mrs. Patrello
had pulled her car over into a parking space on the north side
of 259th Street in the Bronx, facing west and approximately ten
to twenty feet from the next corner, the intersection of Post
Road, in order to mail a letter. Mrs. Patrello testified that
she emerged from her car, walked to the nearby mailbox,
deposited her letter, got back in her car, started her car,
pulled forward perhaps five to ten feet, still in the parking
lane, and then, in a position about six feet from the corner of
259th Street and Post Road, began to pull out of the parking
lane into the main road. It was raining that day, although
apparently raining lightly. Mrs. Patrello testified that,
having looked in her side mirror and found that she could not
see well because of the rain, she then looked out the window of
the car on the driver's side to see if anything was coming
before she pulled out. Since the window was cloudy from fog,
she rolled it down and put her head out to be sure. Seeing
nothing coming, she began to pull out from the parking lane
with her left directional signal on, and, according to her
testimony, having pulled out only about one foot, her car was
hit by a United States postal truck that seemed to have "just
come out of nowhere." The evidence established that the postal
truck, driven by postal employee Oswald Williams, was heading
west on 259th Street after having made a right turn from
Broadway. Mr. Williams testified that he was driving no faster
than ten miles per hour at the time and did not see
Mrs. Patrello's car as he was approaching the corner until it
suddenly pulled out from the parking lane and hit the truck.
Plaintiff, Mr. Patrello, has brought this action against the
United States for damage to his car in the amount of $1,764.74.
The government has filed a third-party complaint against Mrs.
Patrello alleging that any damage was caused by her negligence
and has also brought a claim against her for $54.00
representing damage to the postal truck. Mrs. Patrello, in
turn, has counterclaimed against the government for pain and
suffering from her alleged injuries in the amount of $5,000.00.
The factual issues requiring determination and upon which my
findings are set out below are to what extent the accident was
caused by the negligence of Mrs. Patrello and/or Mr. Williams,
the extent of Mrs. Patrello's injuries and the amount of damage
to the vehicles. The legal issue to be determined, which is
critical to this case and which appears never to have been
considered before in any published opinion, is whether
(assuming some negligence on the part of Mr. Williams, as I
find below) Mrs. Patrello, who was an insured driver, must meet
the burden of proving that she sustained "serious injury"
pursuant to New York's no-fault insurance law or whether,
because the defendant is the United States of America, that
aspect of that statute is inapplicable because it is preempted.
I conclude, for the reasons set out below, that "serious
injury" must remain a requirement in this case and that Mrs.
Patrello has not sustained her burden of proving that her
injury rose to the required level of seriousness. This opinion
constitutes my findings of fact and conclusions of law.
It is well-established that the doctrine of sovereign
immunity bars suit against the United States without its
consent. See, e.g., United States v. Mitchell, 445 U.S. 535,
538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980); Affiliated
Ute Citizens of Utah v. United States, 406 U.S. 128, 92 S.Ct.
1456, 31 L.Ed.2d 741 (1972); Cohens v. Virginia, 19 U.S. (6
Wheat.) 264, 411-12, 5 L.Ed. 257 (1821). Pursuant to the
Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b),
2671-2680, the federal government has consented to be sued for
the "negligent or wrongful acts or omissions" of its employees
acting within the scope of their employment "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. § 1346(b).
The FTCA itself precludes the imposition of liability
in the absence of "negligent or wrongful acts or omissions,"
and state theories of absolute or strict liability therefore
may not be applied against the United States. Laird v. Nelms,
406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972) (reaffirming
Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed.
1427 (1953)); Flynn v. United States, 631 F.2d 678, 681-82
(10th Cir. 1980); Gibson v. United States, 567 F.2d 1237,
1244 (3d Cir. 1977), cert. denied, 436 U.S. 925, 98 S.Ct. 2819,
56 L.Ed.2d 768 (1978).
As the accident out of which the instant tort claim arose
occurred in New York, liability is to be determined under the
law of New York. Goodkin v. United States, 773 F.2d 19, 21 (2d
Cir. 1985); Liberty Mutual Insurance Co. v. United States,
490 F. Supp. 328, 330 (E.D.N.Y. 1980). Were the United States a
private person, the applicable law under the circumstances of
this case for recovery for personal injury would be Article 51
of New York's Insurance Law, officially titled the
Comprehensive Motor Vehicle Insurance Reparations Act
(hereinafter the "no-fault law"), N.Y.Insurance Law §§
5101-5108 (McKinney 1985 & Supp. 1988), and it is therefore
such law that the FTCA requires us to apply herein. Goodkin v.
United States, 773 F.2d at 21; Liberty Mutual Insurance Co. v.
United States, 490 F. Supp. at 330. New York's highest court has
described the New York no-fault law as two-pronged: "One prong
deals with compensation; the other with limitation of tort
actions." Montgomery v. Daniels, 38 N.Y.2d 41, 46, 378 N.Y.S.2d
4, 340 N.E.2d 444, 446 (1975). The no-fault system guarantees
prompt and full compensation for economic losses up to $50,000
without the necessity of recourse to the courts and
simultaneously eliminates recovery for non-economic losses
(i.e., pain and suffering) in relatively minor cases. Id. at
55, 378 N.Y.S.2d at 13, 340 N.E.2d at 452. See also Goodkin v.
United States, 773 F.2d at 21; Licari v. Elliott, 57 N.Y.2d
230, 236, 455 N.Y.S.2d 570, 573, 441 N.E.2d 1088, 1091 (1982).
The two-pronged nature of the no-fault law operates as
follows. On the one hand, § 5103 requires insurers to
compensate accident victims for their "basic economic loss" on
account of personal injury by promptly distributing what are
termed "first party benefits" without regard to fault. "Basic
economic loss" essentially consists of medical expenses, loss
of earnings and other "reasonable and necessary" expenses up to
$50,000 per person. Section 5102(a). "First party benefits"
means reimbursements for basic economic loss minus certain
deductions not relevant herein. Section 5102(b). On the other
hand, § 5104 of the no-fault law imposes two limitations on
tort recovery for personal injuries in actions between "covered
persons" as defined in § 5102(j), that is, persons entitled to
first party benefits.*fn1 First, the injured party may not
duplicate recovery of first party benefits but may recover in
tort only that basic economic loss which exceeds $50,000.
Second, with regard to "non-economic loss" or pain and
suffering (see § 5102(c)), recovery is limited to that
associated with "serious injury" as defined in § 5102(d).
The New York State Legislature's goal in enacting this scheme
was that of
guaranteeing full and fair recovery to all victims
by reducing pressure on a seriously injured person
to compromise down his claims in order to obtain
funds for treatment while at the same time
eliminating pressure on insurers to compromise up
claims by persons suffering minor injuries in
order to avoid the expense of investigating and
defending against such minor claims.
Montgomery v. Daniels, 38 N.Y.2d at 55, 378 N.Y.S.2d at 13, 340
N.E.2d at 452. Reading §§ 5103 and 5104 together, one can see
that the no-fault law thus provides covered persons with a
trade-off. In exchange for their entitlement to prompt payment
of first party benefits under § 5103 without regard to fault,
covered persons must also accept § 5104's tort recovery
limitations in actions against other covered persons.
In the present action, third-party defendant Mrs. Patrello
seeks to recover from defendant United States compensation only
for her "non-economic loss" — the pain and suffering she
allegedly sustained in the accident. Under § 5104, if both Mrs.
Patrello and the United States are deemed covered persons, then
Mrs. Patrello must first prove that she suffered a serious
injury in order to recover for her pain and suffering. However,
if either Mrs. Patrello or the United States is not a covered
person, § 5104 is inapplicable and Mrs. ...