B-144926, FEB. 23, 1961

B-144926, FEB. 23, 1961

TO HOUSE, MERCER AND HOUSE:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 21, 1960, REGARDING THE CLAIM OF YOUR CLIENT, MOTORS INSURANCE CORPORATION, IN THE AMOUNT OF $220.40 REPRESENTING DAMAGES RESULTING FROM THE COLLISION ON MARCH 28, 1960, AT THE LAREDO AIR FORCE BASE, OF AN AIR FORCE PASSENGER AUTOMOBILE, WHICH ROLLED FROM ITS PARKING PLACE DOWN AN INCLINE, AND AN INSURED AUTOMOBILE OWNED BY EMERY L. MILLER, WHO, WE ASSUME, IS IN THE MILITARY SERVICE.

YOU SAY THAT YOU HAVE ATTEMPTED TO COLLECT FROM THE UNITED STATES AIR FORCE, UNDER 10 U.S.C. 2732, THE DAMAGES TO WHICH YOUR CLIENT IS STATED TO BE SUBROGATED BUT THAT FIDELITY-PHENIX FIRE INS. CO. V UNITED STATES, 111 F.SUPP. 899; PREFERRED INSURANCE COMPANY V. UNITED STATES, 222 F.2D 942; AND AIR FORCE REGULATION 112-7 PREVENT SUCH RECOVERY.

YOU FURTHER SAY THAT YOUR CLIENT HAS BEEN DAMAGED THROUGH NO FAULT OF HIS OWN BUT HAS NO METHOD BY WHICH RECOVERY CAN BE SOUGHT AS A MATTER OF RIGHT AND THAT, THEREFORE, YOU SUBMIT THE CLAIM UNDER 31 U.S.C. 236.

THE MILITARY PERSONNEL CLAIMS ACT OF 1945 (NOW 10 U.S.C. 2732) PROVIDES THAT UNDER SUCH REGULATIONS AS THE SECRETARY OF A MILITARY DEPARTMENT MAY PRESCRIBE HE MAY SETTLE AND PAY A CLAIM AGAINST THE UNITED STATES FOR NOT MORE THAN $6,500 BY A CIVILIAN EMPLOYEE OF THAT DEPARTMENT OR A MEMBER OF THE MILITARY SERVICES FOR DAMAGE TO, OR LOSS OF, PERSONAL PROPERTY INCIDENT TO HIS SERVICE.

AIR FORCE REGULATION NO. 112-7 WAS ISSUED PURSUANT TO AND IN EXECUTION OF THE MILITARY PERSONNEL CLAIMS ACT OF 1945. IT IS, THEREFORE, A STATUTORY REGULATION AND HAS THE SAME FORCE AND EFFECT AS LAW. SHERIDAN-WYOMING COAL COMPANY V. KRUG, 172 F.2D 282. PARAGRAPH 3H THEREOF PROHIBITS THE REIMBURSEMENT OF INSURERS FOR LOSSES WHICH THEY HAVE ASSUMED. THE PURPORT OF THE REGULATION IS TO SECURE FOR THE GOVERNMENT THE BENEFITS OF ANY INSURANCE WHICH MAY HAVE BEEN PURCHASED BY MILITARY PERSONNEL. PARAGRAPH 7 REQUIRES THAT THE CLAIMANT FIRST SEEK RECOVERY FORM THE INSURER. IF THE INSURER DENIES LIABILITY, AND THE GOVERNMENT ASSUMES THE LOSS, THE CLAIMANT IS REQUIRED TO ASSIGN WHATEVER CLAIM HE MAY HAVE AGAINST THE INSURER TO THE GOVERNMENT.

THE COURT DECISIONS TO WHICH YOU REFER, AND CITED ABOVE, HOLD THAT THE MILITARY PERSONNEL CLAIMS ACT OF 1945 PROVIDES THE EXCLUSIVE, COMPREHENSIVE, REMEDY FOR PROPERTY LOSSES OF MILITARY PERSONNEL INCIDENT TO THEIR SERVICE AND THAT THE IMPLEMENTING AIR FORCE REGULATION PRECLUDES SUBROGATION OF INSURERS.

THE MERITORIOUS CLAIMS ACT, 31 U.S.C. 236, PROVIDES AS FOLLOWS:

"WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND IN THE JUDGMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION THEREON.'

IT IS WELL ESTABLISHED THAT THE CLAIMS OR DEMANDS WHICH WE MAY REPORT TO CONGRESS UNDER 31 U.S.C. 236 (1) MUST CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO DESERVE SPECIAL CONSIDERATION AND (2) MUST BE CLAIMS OR DEMANDS WHICH COULD BE SETTLED AND ADJUSTED HERE BUT FOR THE LACK OF ANY STATUTE OR APPROPRIATION AUTHORIZING THE PAYMENT OF SUCH CLAIMS. 13 COMP. GEN. 406.

WHILE THE MILITARY PERSONNEL CLAIMS ACT PROVIDES COMPENSATION FOR SERVICE INCIDENT PROPERTY DAMAGE, IT DOES NOT CREATE A RIGHT OF ACTION IN THE SERVICEMAN OR LIABILITY ON THE PART OF THE GOVERNMENT, EVEN FOR DAMAGE CAUSED BY NEGLIGENCE OF A GOVERNMENT AGENT OR EMPLOYEE. PAYMENT OF CLAIMS UNDER IT IS A MATTER NOT OF RIGHT BUT OF GRACE RESTING IN ADMINISTRATIVE DISCRETION AND THERE IS NO PROVISION FOR REVIEW BY THIS OFFICE OR THE COURTS OF THE FINDINGS OR ACTION TAKEN ON SUCH A CLAIM. ONE WHO RESTS ON SUBROGATION STANDS IN THE PLACE OF ONE WHOSE CLAIM HE HAS PAID AND IT IS ELEMENTARY THAT ONE CANNOT ACQUIRE BY SUBROGATION WHAT ANOTHER WHOSE RIGHTS HE CLAIMS DID NOT HAVE. PREFERRED INSURANCE COMPANY V. UNITED STATES, ABOVE.

FURTHERMORE, YOUR CLIENT'S CLAIM WOULD NOT BE COGNIZABLE IN EQUITY. EQUITY MAY NOT ENFORCE THAT WHICH IS FORBIDDEN BY LAW. EDINBURG IRR. CO. V. LEDBETTER, 286 S.W. 185. IT WILL NOT LEND ITS AID TO ACCOMPLISH BY INDIRECTION WHAT THE LAW OR ITS CLEARLY DEFINED POLICY FORBIDS TO BE DONE DIRECTLY. LASS V. ELIASSEN, 270 P. 745; BARBER-COLMAN CO. V. NATIONAL TOOL CO., 136 F.2D 39; 30 C.J.S. EQUITY, SEC. 39.

ACCORDINGLY, WE MAY NOT SUBMIT YOUR CLIENT'S CLAIM TO CONGRESS UNDER THE MERITORIOUS CLAIMS ACT.