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January 7, 1991


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 jury.


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 1, 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. ...

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