B-181180, B-181187, JUN 27, 1974

B-181180,B-181187: Jun 27, 1974

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WHO WERE AUTHORIZED TO RENT CARS INCIDENT TO TEMPORARY DUTY IN GERMANY. WERE ADVISED BY SUPERVISOR TO PURCHASE OPTIONAL INSURANCE COVERAGES FOR COLLISION DAMAGE WAIVER AND PERSONAL ACCIDENT INSURANCE. IS NOT REIMBURSABLE. THE GOVERNMENT IS NOT LIABLE FOR THE ERRONEOUS ACTS OF ITS AGENTS. DOUGLAS WERE ORDERED TO THEIR TEMPORARY DUTY ASSIGNMENTS IN GERMANY BY DEPARTMENT OF THE ARMY. DOUGLAS WERE AUTHORIZED TO RENT AUTOMOBILES. CAMPBELL WAS $120.72 FOR THE COLLISION DAMAGE WAIVER AND $77.62 FOR THE PERSONAL ACCIDENT INSURANCE. THE CLAIMS WERE SUBSEQUENTLY FORWARDED. WHICH WAS PROMULGATED AUGUST 17. DOUGLAS CONTEND THAT THEY WERE NOT AWARE. NOR WERE THEY INFORMED OF THE REVISIONS TO SGTR AND JTR.

B-181180, B-181187, JUN 27, 1974

ALTHOUGH ARMY EMPLOYEES, WHO WERE AUTHORIZED TO RENT CARS INCIDENT TO TEMPORARY DUTY IN GERMANY, WERE ADVISED BY SUPERVISOR TO PURCHASE OPTIONAL INSURANCE COVERAGES FOR COLLISION DAMAGE WAIVER AND PERSONAL ACCIDENT INSURANCE, THEY MAY NOT BE REIMBURSED PREMIUMS SINCE OMB CIRCULAR NO. A-7, HAD BEEN REVISED TO PROHIBIT REIMBURSEMENT OF COLLISION INSURANCE, PERSONAL ACCIDENT INSURANCE, BEING FOR THE PERSONAL PROTECTION OF THE EMPLOYEES, IS NOT REIMBURSABLE, AND THE GOVERNMENT IS NOT LIABLE FOR THE ERRONEOUS ACTS OF ITS AGENTS.

GENE R. CAMPBELL AND MARVIN DOUGLAS:

MR. GENE R. CAMPBELL AND MR. MARVIN DOUGLAS, EMPLOYEES OF THE DEPARTMENT OF THE ARMY, REQUESTED RECONSIDERATION OF THE SETTLEMENTS ISSUED BY OUR TRANSPORTATION AND CLAIMS DIVISION ON NOVEMBER 16, 1973, DISALLOWING THEIR CLAIMS FOR REIMBURSEMENT OF THE COST OF COLLISION DAMAGE WAIVER INSURANCE AND PERSONAL ACCIDENT INSURANCE PURCHASED INCIDENT TO THE RENTAL OF AUTOMOBILES DURING TEMPORARY DUTY ASSIGNMENTS IN GERMANY.

MR. CAMPBELL AND MR. DOUGLAS WERE ORDERED TO THEIR TEMPORARY DUTY ASSIGNMENTS IN GERMANY BY DEPARTMENT OF THE ARMY, U.S. ARMY AERONAUTICAL DEPOT MAINTENANCE CENTER, CORPUS CHRISTI, TEXAS, LETTER ORDERS NUMBER 71- 47, DATED OCTOBER 5, 1971. UNDER THE TERMS OF THEIR ORDERS MR. CAMPBELL AND MR. DOUGLAS WERE AUTHORIZED TO RENT AUTOMOBILES. THEY DEPARTED FROM CORPUS CHRISTI ON OCTOBER 11, 1971, AND ARRIVED IN GERMANY THE FOLLOWING DAY. MR. CAMPBELL AND MR. DOUGLAS EACH RENTED DIFFERENT VEHICLES FOR THE FOLLOWING PERIODS:

OCTOBER 12, 1971 TO OCTOBER 15, 1971

OCTOBER 15, 1971 TO NOVEMBER 14, 1971

NOVEMBER 14, 1971 TO DECEMBER 14, 1971

ON EACH OCCASION BOTH MEN PURCHASED OPTIONAL COLLISION DAMAGE WAIVER INSURANCE, WHICH PROVIDED FULL COVERAGE FOR DAMAGE TO THE VEHICLE, AND OPTIONAL PERSONAL ACCIDENT INSURANCE, WHICH APPARENTLY INCREASED THE LIMITS OF THE LIABILITY INSURANCE COVERING THE VEHICLE.

THE TOTAL COST TO MR. CAMPBELL WAS $120.72 FOR THE COLLISION DAMAGE WAIVER AND $77.62 FOR THE PERSONAL ACCIDENT INSURANCE, WHILE MR. DOUGLAS PAID $120.47 AND $77.62 FOR THE SAME COVERAGES.

WHEN MR. CAMPBELL AND MR. DOUGLAS COMPLETED THEIR TEMPORARY DUTY, THEY SOUGHT REIMBURSEMENT FOR THE COST OF THE COLLISION DAMAGE WAIVER AND THE PERSONAL ACCIDENT INSURANCE. THE ARMY DISALLOWED THEIR CLAIMS ON THE GROUND THAT THE JOINT TRAVEL REGULATIONS (JTR), VOLUME 2, HAD BEEN AMENDED BY CHANGE 74 DATED DECEMBER 1, 1971, RETROACTIVELY EFFECTIVE TO OCTOBER 10, 1971, TO PROHIBIT REIMBURSEMENT OF THE COST OF THE COLLISION DAMAGE WAIVER AND THE PERSONAL ACCIDENT INSURANCE. THE CLAIMS WERE SUBSEQUENTLY FORWARDED, AT THE REQUEST OF THE CLAIMANTS, TO THIS OFFICE FOR CONSIDERATION. THE SETTLEMENT CERTIFICATES DISALLOWING THE CLAIMS CITED SECTIONS 3.2C AND 1.3 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS (SGTR), AS REVISED BY OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A -7, WHICH WAS PROMULGATED AUGUST 17, 1971, TO BE EFFECTIVE OCTOBER 10, 1971, AS PROHIBITING THE REIMBURSEMENT OF THE COST OF COLLISION DAMAGE WAIVER AND PERSONAL ACCIDENT INSURANCE.

MR. CAMPBELL AND MR. DOUGLAS CONTEND THAT THEY WERE NOT AWARE, NOR WERE THEY INFORMED OF THE REVISIONS TO SGTR AND JTR, VOL. 2, UNTIL THEIR CLAIMS FOR REIMBURSEMENT WERE DENIED IN FEBRUARY 1972. IN FACT, THEY CONTEND THAT THE PROJECT MANAGER DIRECTED THEM TO PURCHASE THE COLLISION DAMAGE WAIVER AND PERSONAL ACCIDENT INSURANCE. FINALLY, THEY CLAIM THAT ONLY ABOUT TWO WEEKS PRIOR TO THE BEGINNING OF THEIR TEMPORARY DUTY ASSIGNMENTS, THEY HAD RENTED CARS IN DALLAS, TEXAS, WHILE ON ARMY BUSINESS, AND HAD BEEN REIMBURSED FOR THE SAME TYPE OF OPTIONAL INSURANCE THAT IS INVOLVED HERE.

THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS WERE ISSUED UNDER THE AUTHORITY OF 5 U.S.C. 5707 AND WERE THE PRIMARY REGULATIONS GOVERNING THE TRAVEL OF ALL CIVILIAN OFFICERS AND EMPLOYEES AS DEFINED IN 5 U.S.C. 5701. THESE REGULATIONS ARE STATUTORY IN NATURE, HAVE THE FORCE AND EFFECT OF LAW, AND MAY NOT BE WAIVED IN INDIVIDUAL CASES.

IN THE "SUMMARY OF CHANGES" ATTACHED TO OMB CIRCULAR NO. A-7, IT IS STATED THAT SECTION 3.2C IS A NEW PROVISION PROHIBITING PAYMENT BY THE GOVERNMENT OF THE COST OF THE COLLISION DAMAGE WAIVER CHARGE IN CONNECTION WITH COMMERCIAL AUTOMOBILE RENTALS. THAT SECTION PROVIDED:

"DAMAGE WAIVER ON RENTAL AUTOMOBILES. IN CONNECTION WITH THE RENTAL OF AUTOMOBILES FROM COMMERCIAL SOURCES THE GOVERNMENT WILL NOT PAY NOR WILL IT REIMBURSE EMPLOYEES FOR THE COST OF THE COLLISION DAMAGE WAIVER OR COLLISION DAMAGE INSURANCE AVAILABLE IN COMMERCIAL RENTAL CONTRACTS FOR AN EXTRA FEE. THE WAIVER OR INSURANCE REFERRED TO IS THE TYPE OFFERED A RENTER TO RELEASE HIM FROM LIABILITY FOR DAMAGE TO THE RENTED AUTOMOBILE IN AMOUNTS UP TO THE AMOUNT DEDUCTIBLE (USUALLY $100) ON THE INSURANCE INCLUDED AS A PART OF THE RENTAL CONTRACT WITHOUT ADDITIONAL CHARGE. UNDER DECISIONS OF THE COMPTROLLER GENERAL THE AGENCY IN APPROPRIATE CIRCUMSTANCES IS AUTHORIZED TO PAY FOR DAMAGE TO THE RENTED AUTOMOBILE UP TO THE DEDUCTIBLE AMOUNT AS CONTAINED IN THE RENTAL CONTRACT SHOULD THE RENTED AUTOMOBILE BE DAMAGED WHILE BEING USED FOR OFFICIAL BUSINESS."

THE SAME PROVISION WAS ADDED TO JTR, VOLUME 2, AS PARAGRAPH C6101-3, BY CHANGE 74, DATED DECEMBER 1, 1971, WHICH WAS TO BE RETROACTIVELY EFFECTIVE AS OF OCTOBER 10, 1971, THE EFFECTIVE DATE OF THE STATUTORY REGULATION CITED ABOVE. SINCE ALL OF THE CAR RENTAL CONTRACTS WERE ENTERED INTO AFTER OCTOBER 10, 1971, THE PROHIBITION AGAINST REIMBURSEMENT OF THE COST OF THE COLLISION DAMAGE WAIVER APPLIES, AND THE DISALLOWANCE OF THOSE PORTIONS OF THE CLAIMS IS AFFIRMED. SEE B 176543, AUGUST 30, 1972; B- 175556, MAY 19, 1972; AND B-172721, MARCH 13, 1972.

MR. CAMPBELL AND MR. DOUGLAS ARE ALSO SEEKING REIMBURSEMENT OF THE COST OF PERSONAL ACCIDENT INSURANCE. IN THAT CONNECTION, SECTION 1.3 OF OMB CIRCULAR NO. A-7, (FORMERLY NUMBERED 1.4) THEN PROVIDED:

"TRAVELING EXPENSES WHICH WILL BE REIMBURSED ARE CONFINED TO THOSE EXPENSES ESSENTIAL TO THE TRANSACTING OF THE OFFICIAL BUSINESS."

IN ADDITION, PARAGRAPH C1054 OF JTR, VOLUME 2, WAS ALSO ADDED BY CHANGE 74, AND WAS ALSO TO BE EFFECTIVE OCTOBER 10, 1971, PROVIDES THAT:

"THE PREMIUM COST OF ACCIDENT OR LIABILITY INSURANCE TAKEN OUT BY AN EMPLOYEE WHILE TRAVELING ON A TEMPORARY DUTY ASSIGNMENT IS NOT REIMBURSABLE."

THE JTR PROVISION APPEARS TO BE MERELY A CLARIFICATION OF THE APPLICATION OF SECTION 1.3 OF THE OMB CIRCULAR. IN THIS CONNECTION IT HAS BEEN A LONG ESTABLISHED RULE THAT THE COST OF INSURANCE PREMIUMS FOR THE PERSONAL PROTECTION OF THE EMPLOYEE ARE NOT REIMBURSABLE. SEE 40 COMP. GEN. 11 (1960); 47 ID. 319 (1967). THEREFORE, THE DISALLOWANCE OF THESE CLAIMS IS ALSO AFFIRMED.

THE CLAIMANTS CONTEND THAT THEY WERE NOT GIVEN NOTICE OF THE CHANGES TO THE SGTR. HOWEVER, SINCE THE REVISIONS TO OMB CIRCULAR NO. A-7, WERE PROMULGATED ON AUGUST 17, 1971, AND THESE WERE THE REVISIONS TO THE APPLICABLE STATUTORY REGULATIONS, WE HAVE HELD THAT ALL PERSONS CONCERNED HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THEIR PROVISIONS PRIOR TO THEIR EFFECTIVE DATE OF OCTOBER 10, 1971. SEE B-175556, MAY 19, 1972.

FINALLY, THE CLAIMANTS ASSERT THAT THEY WERE AFFIRMATIVELY ADVISED BY THEIR PROJECT MANAGER TO PURCHASE THE OPTIONAL INSURANCE COVERAGES. SINCE THE REVISION TO THE SGTR WAS ALREADY IN EFFECT AT THE TIME THE CAR RENTAL CONTRACTS WERE SIGNED, THIS ADVICE WAS ERRONEOUS. IT HAS LONG BEEN HELD THAT INCORRECT ADVICE OR INSTRUCTIONS GIVEN BY A GOVERNMENT EMPLOYEE CANNOT BE USED AS THE BASIS FOR EXPANDING THE GOVERNMENT'S LIABILITY BEYOND THAT CREATED BY STATUTES AND REGULATIONS. SEE FEDERAL CROP INS. CORP. V. MERRILL, 332 U.S. 380 (1947); UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE V. HIBI, 414 U.S. 5 (1973); 44 COMP. GEN. 337 (1964); 46 COMP. GEN. 348 (1966).

ACCORDINGLY, THE DISALLOWANCE OF THE CLAIMS OF MR. GENE R. CAMPBELL AND MR. MARVIN DOUGLAS IS AFFIRMED.