B-20680, OCTOBER 17, 1941, 21 COMP. GEN. 341

B-20680: Oct 17, 1941

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IF SUCH CLAIMS ARE BASED ON CIRCUMSTANCES THAT WOULD CREATE A LEGAL LIABILITY ON THE GOVERNMENT TO PAY THE DAMAGE OF THE INJURED PARTY WERE IT NOT FOR THE SOVEREIGN IMMUNITY OF THE GOVERNMENT FROM SUIT IN SUCH MATTERS. WHO PAYS OR IS OBLIGATED TO PAY COMPENSATION TO AN INSURED EMPLOYEE INJURED THROUGH THE OPERATION OF THE POST OFFICE DEPARTMENT MAY BE REGARDED AS A CLAIMANT BY SUBROGATION UNDER THE ACT OF JUNE 16. 1941: I HAVE YOUR LETTER OF SEPTEMBER 20. WHO WAS INJURED IN AN ACCIDENT INVOLVING A UNITED STATES MAIL TRUCK. THE CHANGE IN POLICY WITH RESPECT TO THE HANDLING OF CLAIMS INVOLVING NEGLIGENCE ON THE PART OF A GOVERNMENT EMPLOYEE WAS PREDICATED UPON A CONSTRUCTION OF THE ACT OF DECEMBER 28.

B-20680, OCTOBER 17, 1941, 21 COMP. GEN. 341

DAMAGE CLAIMS - RIGHTS OF SUBROGEES CLAIMS BY SUBROGEES MAY BE CONSIDERED AND ALLOWED BY THE POSTMASTER GENERAL UNDER THE ACT OF JUNE 16, 1921, AS AMENDED, AUTHORIZING HIM TO ADJUST AND SETTLE "ANY CLAIM" FOR DAMAGES TO PERSON OR PROPERTY ARISING OUT OF THE OPERATION OF THE POST OFFICE DEPARTMENT WHERE HIS AWARD DOES NOT EXCEED $500, IF SUCH CLAIMS ARE BASED ON CIRCUMSTANCES THAT WOULD CREATE A LEGAL LIABILITY ON THE GOVERNMENT TO PAY THE DAMAGE OF THE INJURED PARTY WERE IT NOT FOR THE SOVEREIGN IMMUNITY OF THE GOVERNMENT FROM SUIT IN SUCH MATTERS. AN INSURER UNDER THE WORKMEN'S COMPENSATION LAWS OF CALIFORNIA, INCLUDING THE STATE COMPENSATION INSURANCE FUND, WHO PAYS OR IS OBLIGATED TO PAY COMPENSATION TO AN INSURED EMPLOYEE INJURED THROUGH THE OPERATION OF THE POST OFFICE DEPARTMENT MAY BE REGARDED AS A CLAIMANT BY SUBROGATION UNDER THE ACT OF JUNE 16, 1921, AS AMENDED, AUTHORIZING THE POSTMASTER GENERAL TO ADJUST CERTAIN CLAIMS FOR DAMAGE ARISING AS A RESULT OF THE ACTIVITIES OF THE POST OFFICE DEPARTMENT.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, OCTOBER 17, 1941:

I HAVE YOUR LETTER OF SEPTEMBER 20, 1941, AS FOLLOWS:

THIS DEPARTMENT HAS UNDER CONSIDERATION A CLAIM FILED BY THE STATE COMPENSATION INSURANCE FUND FOR THE STATE OF CALIFORNIA AS SUBROGEE OF GILBERT A. BENOIT, AN EMPLOYEE OF THE STATE BELT RAILROAD, WHO WAS INJURED IN AN ACCIDENT INVOLVING A UNITED STATES MAIL TRUCK.

IT HAS BEEN THE POLICY OF THE DEPARTMENT TO DECLINE TO PAY SUBROGATION CLAIMS PRESENTED UNDER THE PROVISIONS OF 5 U.S.C. 392, AS AMENDED--- SUCH POLICY BEING PREDICATED UPON THE DECISION OF YOUR OFFICE REPORTED IN6 C.G. 770. HOWEVER, THE ATTENTION OF THE DEPARTMENT HAS BEEN CALLED TO THE DECISION OF YOUR OFFICE REPORTED IN 19 C.G. 503, MODIFYING 6 C.G. 770 IN ITS APPLICATION TO SUBROGATION CLAIMS ARISING OUT OF ACCIDENTS WHERE THE GOVERNMENT EMPLOYEE HAS BEEN NEGLIGENT.

THE CHANGE IN POLICY WITH RESPECT TO THE HANDLING OF CLAIMS INVOLVING NEGLIGENCE ON THE PART OF A GOVERNMENT EMPLOYEE WAS PREDICATED UPON A CONSTRUCTION OF THE ACT OF DECEMBER 28, 1922 (31 U.S.C. 215), BY THE ATTORNEY GENERAL AND THE SUBSEQUENT APPROVAL OF THAT CONSTRUCTION BY CONGRESS, THE NET EFFECT OF WHICH WAS TO INDICATE A CONGRESSIONAL INTENT THAT SUBROGATION CLAIMS BE APPROVED WHERE NEGLIGENCE WAS SHOWN.

THE CASE WHICH FORMED THE BASIS OF THE DECISION IN 19 C.G. 503 IS DISTINGUISHABLE FROM CASES CONSIDERED AND SETTLED UNDER 5 U.S.C. 392, AS AMENDED, IN THAT THE LATTER DOES NOT REQUIRE A FINDING OF NEGLIGENCE ON THE PART OF THE GOVERNMENT EMPLOYEE INVOLVED. THUS, CLAIMS FOR PERSONAL INJURIES OR PROPERTY DAMAGE MAY BE ALLOWED BY THE DEPARTMENT WITHIN THE LIMITS PRESCRIBED BY LAW IN INSTANCES WHERE THE SAID INJURIES OR DAMAGE WAS BROUGHT ABOUT BY A LATENT DEFECT OR UNDER OTHER CIRCUMSTANCES NOT IMPLYING NEGLIGENCE ON THE PART OF THE GOVERNMENT EMPLOYEE INVOLVED.

BEFORE PROCEEDING TO AN ADJUDICATION OF THE CLAIM OF THE STATE OF CALIFORNIA COVERING COMPENSATION PAYMENTS MADE TO BENOIT UNDER THE PROVISIONS OF A STATE EMPLOYERS' LIABILITY ACT, IT WILL BE APPRECIATED IF YOU WILL AT AN EARLY DATE FURNISH THIS DEPARTMENT WITH A DECISION AS TO THE ALLOWABILITY OF SUBROGATION CLAIMS UNDER THE ACT SET FORTH IN 5 U.S.C; AS AMENDED; ALSO WHETHER SUCH CLAIMS MAY BE GIVEN FAVORABLE CONSIDERATION WHETHER OR NOT THERE IS A DEFINITE FINDING OF NEGLIGENCE ON THE PART OF THE GOVERNMENT EMPLOYEE INVOLVED.

THAT PART OF THE ACT OF JUNE 16, 1921, 42 STAT. 63, WHICH, AS AMENDED BY THE ACT OF JUNE 22, 1934, 48 STAT. 1207, APPEARS AS SECTION 392 OF TITLE 5, U.S.C., REFERRED TO IN YOUR LETTER, PROVIDES:

WHEN ANY DAMAGE IS DONE TO PERSON OR PROPERTY BY OR THROUGH THE OPERATION OF THE POST OFFICE DEPARTMENT IN ANY BRANCH OF ITS SERVICE AND SUCH DAMAGE IS FOUND BY THE POSTMASTER GENERAL UPON INVESTIGATION TO BE A PROPER CHARGE AGAINST THE UNITED STATES, THE POSTMASTER GENERAL IS INVESTED WITH POWER TO ADJUST AND SETTLE ANY CLAIM FOR SUCH DAMAGE WHEN HIS AWARD FOR SUCH DAMAGE IN ANY CASE DOES NOT EXCEED $500, AND THIS AUTHORITY SHALL HEREAFTER BE CONSTRUED AS EXTENDING TO CASES CAUSED BY THE NEGLIGENCE OF ANY OFFICER OR EMPLOYEE OF THE POST OFFICE DEPARTMENT OR POSTAL SERVICE ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT.

THE LAW AS ORIGINALLY ENACTED DID NOT CONTAIN THE EXPRESS PROVISION NOW CONTAINED THEREIN RELATING TO CLAIMS BASED ON NEGLIGENCE. AS ORIGINALLY ENACTED, IT WAS GENERAL IN CHARACTER AND RELATED TO ANY DAMAGES DONE TO PERSON OR PROPERTY BY OR THROUGH THE OPERATION OF ANY ACTIVITY OF THE POST OFFICE DEPARTMENT WHEN THE DAMAGE DID NOT EXCEED $500. HOWEVER, IT WAS HELD IN A DECISION OF MARCH 5, 1923, BY FORMER COMPTROLLER GENERAL MCCARL TO THE THEN POSTMASTER GENERAL, THAT BY REASON OF THE LATER ACT OF DECEMBER 28, 1922, 42 STAT. 1066, CONFERRING AUTHORITY UPON THE HEAD OF EACH DEPARTMENT AND ESTABLISHMENT TO CONSIDER, ASCERTAIN, ADJUST, AND DETERMINE ANY CLAIM ACCRUING AFTER APRIL 6, 1917, ON ACCOUNT OF DAMAGES TO OR LOSS OF PRIVATELY OWNED PROPERTY, WHERE THE CLAIM DOES NOT EXCEED $1,000, CAUSED BY THE NEGLIGENCE OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AND TO CERTIFY THE SAME TO THE CONGRESS, CLAIMS BASED ON NEGLIGENCE, INSOFAR AS PROPERTY DAMAGE WAS CONCERNED, WERE THEREAFTER NOT FOR CONSIDERATION UNDER THE ACT OF JUNE 16, 1921, BUT INSTEAD WERE FOR CONSIDERATION UNDER THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066, 2 COMP. GEN. 529. SUBSEQUENTLY, THE ACT OF JUNE 16, 1921, WAS AMENDED BY THE ACT OF JUNE 22, 1934, BY ADDING THE PROVISION EXPRESSLY INCLUDING CLAIMS BASED ON NEGLIGENCE OTHERWISE WITHIN THE ACT.

THE PROVISIONS OF THE ACT HERE INVOLVED, AS AMENDED JUNE 22, 1934, APPEAR TO BE SUBSTANTIALLY SIMILAR, INSOFAR AS CLAIMS BASED ON NEGLIGENCE ARE CONCERNED, TO THOSE OF SECTION 26 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939, 53 STAT. 936, WHICH PROVIDES:

THE COMMISSIONER AND THE NATIONAL YOUTH ADMINISTRATOR ARE AUTHORIZED TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE, AND PAY FROM THE APPROPRIATION IN SECTION 1 OR SECTION 2 HEREOF ANY CLAIM ARISING OUT OF OPERATIONS THEREUNDER ACCRUING AFTER THE EFFECTIVE DATE OF THIS JOINT RESOLUTION ON ACCOUNT OF DAMAGE TO OR LOSS OF PRIVATELY OWNED PROPERTY CAUSED BY THE NEGLIGENCE OF ANY EMPLOYEE OF THE WORK PROJECTS ADMINISTRATION OR THE NATIONAL YOUTH ADMINISTRATION, AS THE CASE MAY BE, WHILE ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT. NO CLAIM SHALL BE CONSIDERED HEREUNDER WHICH IS IN EXCESS OF $500, OR WHICH IS NOT PRESENTED IN WRITING WITHIN ONE YEAR FROM THE DATE OF ACCRUAL THEREOF. ACCEPTANCE BY A CLAIMANT OF THE AMOUNT ALLOWED ON ACCOUNT OF HIS CLAIM SHALL BE DEEMED TO BE IN FULL SETTLEMENT THEREOF, AND THE ACTION UPON SUCH CLAIM SO ACCEPTED BY THE CLAIMANT SHALL BE CONCLUSIVE.

THE QUESTION WHETHER CLAIMS OF INSURANCE COMPANIES AS SUBROGEES MIGHT BE CONSIDERED UNDER THE QUOTED PROVISIONS OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939 WAS CONSIDERED IN A DECISION OF NOVEMBER 18, 1939, BY FORMER COMPTROLLER GENERAL BROWN TO THE FEDERAL WORKS ADMINISTRATOR, REPORTED IN 19 COMP. GEN. 503, AND REFERRED TO IN YOUR LETTER, WHEREIN IT WAS HELD THAT, FOR REASONS STATED IN THE DECISIONS, CLAIMS OF INSURANCE COMPANIES OR OTHER SUBROGEES OF PERSONS WHOSE PROPERTY HAD BEEN DAMAGED AS A RESULT OF NEGLIGENCE OF EMPLOYEES OF THE WORK PROJECTS ADMINISTRATION WHILE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT WERE FOR CONSIDERATION UNDER SAID SECTION 26 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939. THE REASONS FOR THE CONCLUSION THERE REACHED WERE, BRIEFLY, (1) THAT THE PROVISION THERE INVOLVED EXPRESSLY COVERED "ANY CLAIM" OF $500 OR LESS OF THE CLASS DESCRIBED IN THE ACT; (2) THAT, AS A MATTER OF GENERAL LAW, AN INSURANCE COMPANY WHICH PAYS VALID CLAIMS FOR LOSS OR DAMAGE TO PRIVATELY OWNED PROPERTY PURSUANT TO THE REQUIREMENTS OF AN INSURANCE CONTRACT WITH THE INJURED PARTY IS ENTITLED TO BE SUBROGATED TO THE RIGHTS OF THE INSURED AGAINST THE PERSON LEGALLY RESPONSIBLE FOR THE LOSS; AND (3) THAT THE CONGRESS HAD SANCTIONED THE PAYMENT OF CLAIMS OF INSURANCE COMPANIES REPORTED TO IT UNDER THE ACT OF DECEMBER 28, 1922, REFERRED TO ABOVE, WHICH BY ITS EXPRESS TERMS RELATED TO "ANY CLAIM" ON ACCOUNT OF DAMAGES TO OR LOSS OF PRIVATELY OWNED PROPERTY CAUSED BY THE NEGLIGENCE OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT--- PROVISIONS COMPARABLE TO THOSE IN SECTION 26 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939, INSOFAR AS THE QUESTION AS TO WHETHER CLAIMS OF SUBROGEES ARE WITHIN ITS SCOPE IS CONCERNED--- THUS INDICATING LEGISLATIVE APPROVAL OF THE VIEW THAT SUBROGATION CLAIMS, IF OTHERWISE PROPER, ARE WITHIN THE 1922 ACT.

THE REASONING IN THE DECISION IN 19 COMP. GEN. 503, AND THE CONCLUSION THERE REACHED APPEAR TO BE EQUALLY APPLICABLE TO THE PRESENT MATTER. THE STATUTE HERE, AS THERE, PROVIDES FOR THE CONSIDERATION BY THE ADMINISTRATIVE OFFICIAL DESIGNATED THEREIN--- IN THIS CASE, THE POSTMASTER GENERAL--- OF "ANY CLAIM" OF THE CLASS DESCRIBED IN THE ACT, WHILE UNDER THE ACT HERE INVOLVED THE AUTHORITY TO ADJUST AND SETTLE CLAIMS THEREUNDER IS NOT SUCH AS IN ITSELF TO CREATE A LEGAL LIABILITY AGAINST THE GOVERNMENT ENFORCEABLE BY LEGAL PROCESS--- WHICH IS ALSO THE CASE WITH RESPECT TO CLAIMS UNDER THE 1922 AND THE 1939 ACTS REFERRED TO ABOVE--- THERE APPEARS NOTHING IN THE ACT HERE INVOLVED TO INDICATE AN INTENTION THAT THE GENERAL RULE OF SUBROGATION STATED IN THE DECISION IN 19 COMP. GEN. 503 AND REFERRED TO ABOVE, SHOULD NOT BE REGARDED AS APPLICABLE WITH RESPECT TO CLAIMS FILED UNDER SAID ACT. ON THE CONTRARY, AS WAS SAID IN THE CITED DECISION WITH RESPECT TO THE ACT THERE INVOLVED, THE USE OF THE BROAD AND COMPREHENSIVE TERM "ANY CLAIM" IN THE ACT HERE INVOLVED WOULD APPEAR TO COVER ALL CLAIMS OF THE CLASS DESCRIBED IN THE ACT WHEN FILED BY ANY PERSON TO WHOM THE UNITED STATES WOULD HAVE BEEN LIABLE PRIOR TO THE ENACTMENT OF THE ACT BUT FOR ITS SOVEREIGN IMMUNITY.

YOU ASK, ALSO, WHETHER SUBROGATION CLAIMS MAY BE GIVEN FAVORABLE CONSIDERATION UNDER THE 1921 ACT, AS AMENDED, WHETHER OR NOT THERE IS A DEFINITE FINDING OF NEGLIGENCE ON THE PART OF THE GOVERNMENT EMPLOYEE INVOLVED. WITH REFERENCE TO THIS PHASE OF THE MATTER, IT MAY BE SAID THAT THE GENERAL RIGHT OF SUBROGATION IS NOT CONFINED TO CASES INVOLVING NEGLIGENCE. BROADLY SPEAKING, THE DOCTRINE OF SUBROGATION EXTENDS TO ONE, WHO, BY REASON OF A LEGAL OBLIGATION TO DO SO, PAYS THE DEBT OF ANOTHER TO A THIRD PARTY. FOR A GENERAL DISCUSSION OF THE DOCTRINE OF SUBROGATION, SEE AETNA LIFE INSURANCE COMPANY V. MIDDLEPORT, 124 U.S. 534; PRAIRIE STATE BANK V. UNITED STATES, 164 U.S. 227; 60 CORPUS JURIS 694, ET SEQ. UNDER THE DOCTRINE AS APPLIED TO INSURERS, IT IS THE GENERAL RULE THAT WHERE AN INSURER UNDER A CONTRACT OF INDEMNITY PAYS HIS INSURED A LOSS CAUSED THE LATTER BY A THIRD PARTY, THE INSURER IS SUBROGATED TO THE RIGHTS OF THE INSURED AGAINST SUCH THIRD PARTY. SEE 33 CORPUS JURIS 43. ALSO, THE ACT HERE INVOLVED, AS AMENDED, IS NOT CONFINED TO THE CONSIDERATION OF CLAIMS BASED ON NEGLIGENCE BUT IS OF A BROADER SCOPE IN THAT IT COVERS ANY CLAIM FOR DAMAGE TO PERSON OR PROPERTY NOT IN EXCESS OF $500 WHEN CAUSED UNDER CONDITIONS THEREIN MENTIONED AND FOUND BY THE POSTMASTER GENERAL UPON INVESTIGATION TO BE A "PROPER CHARGE" AGAINST THE UNITED STATES. IT WOULD SEEM CLEAR, THEREFORE, THAT IN THE CASE OF DAMAGE TO PERSON OR PROPERTY OCCURRING UNDER SUCH CIRCUMSTANCES AS TO MAKE A CLAIM THEREFOR BY THE PARTY SUSTAINING THE DAMAGE PROPERLY FOR CONSIDERATION AND ALLOWANCE UNDER THE ACT, WHETHER BASED ON NEGLIGENCE OR NOT, A PARTY WHO, BY REASON OF A LEGAL OBLIGATION TO DO SO, PAID SUCH DAMAGE TO THE PARTY SUSTAINING THE SAME, MAY BE REGARDED AS A PROPER CLAIMANT BY SUBROGATION. IN THIS CONNECTION, HOWEVER, IT MAY BE SAID THAT NO SITUATION READILY SUGGESTS ITSELF WHICH MIGHT ARISE WHEREBY A CLAIM FOR DAMAGE TO PERSON OR PROPERTY ARISING FROM THE OPERATION OF A MAIL TRUCK COULD ARISE UNLESS BASED ON NEGLIGENCE--- EVEN THOUGH NOT ON THE PART OF THE OPERATOR OF THE TRUCK--- SINCE IT IS THE APPARENT PURPOSE AND INTENT OF THE ACT THAT SUCH A CLAIM WOULD BE FOR CONSIDERATION AND ALLOWANCE ONLY IF THE CIRCUMSTANCES WERE SUCH AS TO CREATE A LEGAL LIABILITY FOR SUCH DAMAGE WERE THE GOVERNMENT SUBJECT TO SUIT IN SUCH A MATTER. THEREFORE, IT SEEMS CLEAR THAT THERE IS NO BASIS FOR A CLAIM IN SUCH A CASE BY A PARTY AS SUBROGEE UNLESS THE DAMAGE WAS DUE TO NEGLIGENCE WITH WHICH THE GOVERNMENT WOULD BE CHARGEABLE WERE IT SUBJECT TO SUIT, SINCE SUCH PARTY WOULD BE ENTITLED TO NO GREATER CONSIDERATION AS A CLAIMANT THAN THE PARTY SUSTAINING THE DAMAGE. AND EVEN IN SUCH A CASE, THAT IS, A CLAIM BASED ON NEGLIGENCE, ANY ALLOWANCE TO A PARTY CLAIMING AS SUBROGEE WOULD BE LIMITED TO SUCH OF THE ITEMS OF DAMAGE HE WAS OBLIGATED TO PAY AND IN FACT PAID TO THE PERSON SUSTAINING THE DAMAGE AS WOULD BE FOR CONSIDERATION AND ALLOWANCE UNDER THE ACT TO THE PERSON SUSTAINING THE DAMAGE WERE HE THE CLAIMANT. STANDARD MARINE INS. CO. V. SCOTTISH METROPOLITAN ASSUR. CO., 39 F. (2D) 436.

WITH REFERENCE SPECIFICALLY TO WHETHER THE STATE COMPENSATION INSURANCE FUND OF THE STATE OF CALIFORNIA MAY BE RECOGNIZED UNDER THE ACT HERE INVOLVED AS THE SUBROGEE OF THE PARTY REFERRED TO IN YOUR LETTER WHO IS SAID TO HAVE BEEN INSURED IN AN ACCIDENT INVOLVING A UNITED STATES MAIL TRUCK, THERE ARE NECESSARILY FOR CONSIDERATION THE RIGHTS WHICH AN INSURER MAY HAVE UNDER THE LAWS OF CALIFORNIA RELATING TO WORKMEN'S COMPENSATION INSURANCE AGAINST A THIRD PERSON CAUSING INJURY TO AN EMPLOYEE OF THE INSURED. IN THIS CONNECTION, AN EXAMINATION OF THE LABOR CODE OF THE STATE OF CALIFORNIA DISCLOSES THE FOLLOWING PROVISIONS UNDER DIVISION IV THEREOF RELATING TO WORKMEN'S COMPENSATION INSURANCE:

3211. "INSURER" DEFINED. "INSURER" INCLUDES THE STATE COMPENSATION INSURANCE FUND AND ANY PRIVATE COMPANY, CORPORATION, MUTUAL ASSOCIATION, RECIPROCAL OR INTERINSURANCE EXCHANGE AUTHORIZED UNDER THE LAWS OF THIS STATE TO INSURE EMPLOYERS AGAINST LIABILITY FOR COMPENSATION AND ANY EMPLOYER TO WHOM A CERTIFICATE OF CONSENT TO SELF-INSURE HAS BEEN ISSUED. (ENACTED 1937.) * * * * * **

3850. DEFINITIONS. AS USED IN THIS CHAPTER:

(A)"EMPLOYEE" INCLUDES THE PERSON INJURED AND ANY OTHER PERSON TO WHOM A CLAIM ACCRUES BY REASON OF THE INJURY OR DEATH OF THE FORMER.

(B) "EMPLOYER" INCLUDES INSURER AS DEFINED IN THIS DIVISION. (ENACTED 1937.)

3852. ACTION AGAINST THIRD PERSONS; RIGHT OF EMPLOYEE AND EMPLOYER. THE CLAIM OF AN EMPLOYEE FOR COMPENSATION DOES NOT AFFECT HIS CLAIM OR RIGHT OF ACTION FOR ALL DAMAGES PROXIMATELY RESULTING FROM SUCH INJURY OR DEATH AGAINST ANY PERSON OTHER THAN THE EMPLOYER. ANY EMPLOYER WHO PAYS, OR BECOMES OBLIGATED TO PAY COMPENSATION, MAY LIKEWISE MAKE A CLAIM OR BRING AN ACTION AGAINST SUCH THIRD PERSON. IN THE LATTER EVENT THE EMPLOYER MAY RECOVER IN THE SAME SUIT, IN ADDITION TO THE TOTAL AMOUNT OF COMPENSATION, DAMAGES FOR WHICH HE WAS LIABLE INCLUDING ALL SALARY, WAGE, PENSION, OR OTHER EMOLUMENT PAID TO THE EMPLOYEE OR TO HIS DEPENDENTS. (ENACTED 1937.)

IT IS THUS EXPRESSLY PROVIDED BY THE LAWS OF CALIFORNIA THAT THE CLAIM OF AN EMPLOYEE FOR COMPENSATION DOES NOT AFFECT HIS CLAIM OR RIGHT OF ACTION FOR ALL DAMAGES PROXIMATELY RESULTING FROM INJURY OR DEATH AGAINST ANY PERSON OTHER THAN THE EMPLOYER, AND THAT ANY EMPLOYER WHO PAYS OR BECOMES OBLIGATED TO PAY COMPENSATION MAY LIKEWISE MAKE A CLAIM OR BRING AN ACTION AGAINST SUCH THIRD PERSON. ALSO, IT EXPRESSLY APPEARS THEREFROM THAT "EMPLOYER" INCLUDES AN INSURER, AND THAT THE LATTER INCLUDES THE STATE COMPENSATION INSURANCE FUND.

IT WOULD SEEM APPARENT, UNDER THE FOREGOING PROVISIONS, THAT AN INSURER WHO PAYS OR IS OBLIGATED TO PAY COMPENSATION TO AN INSURED EMPLOYEE IS ENTITLED TO ASSERT, BY SUBROGATION, ANY CLAIM OR RIGHT OF ACTION AGAINST A THIRD PARTY CAUSING THE INJURY TO SUCH EMPLOYEE WHICH SUCH EMPLOYEE MAY HAVE AGAINST SUCH THIRD PARTY, WITH THE RIGHT TO RECOVER DAMAGES AS PRESCRIBED IN THE STATUTE. IT IS ALSO CLEAR THAT A PERSON SUSTAINING DAMAGE AS THE RESULT OF THE ACTIVITIES OF THE POST OFFICE DEPARTMENT UNDER FACTS AND CIRCUMSTANCES WHICH WOULD GIVE SUCH PERSON A RIGHT OF ACTION THEREFOR AGAINST THE GOVERNMENT IF THE GOVERNMENT WERE SUBJECT TO SUIT IN SUCH A MATTER WOULD BE A PROPER CLAIMANT UNDER THE 1921 ACT, AS AMENDED, WHERE THE AWARD FOR SUCH DAMAGE DID NOT EXCEED $500.

THEREFORE, IN VIEW OF THE PROVISIONS OF THE CALIFORNIA LAW ABOVE QUOTED, AND SINCE CLAIMS BY SUBROGEES MAY, AS HEREINABOVE INDICATED, BE REGARDED AS WITHIN THE 1921 ACT, AS AMENDED, AN INSURER UNDER THE WORKMEN'S COMPENSATION LAWS OF CALIFORNIA PROPERLY MAY BE REGARDED AS A CLAIMANT BY SUBROGATION UNDER THE 1921 ACT, AS AMENDED, WHERE THE CLAIM IS BASED ON FACTS AND CIRCUMSTANCES WHICH WOULD GIVE THE EMPLOYEE SUSTAINING DAMAGE A RIGHT OF ACTION THEREFOR AGAINST THE GOVERNMENT IF THE GOVERNMENT WERE SUBJECT TO SUIT IN THE MATTER BY SUCH INJURED PARTY. IT SHOULD BE FURTHER POINTED OUT, HOWEVER, THAT IN DETERMINING THE AMOUNT OF ANY AWARD WHICH MIGHT BE MADE TO SUCH AN INSURER, CONSIDERATION SHOULD BE GIVEN TO ONLY SUCH OF THE ITEMS AS AN INSURER WOULD BE ENTITLED TO RECOVER, AS SET FORTH IN SECTION 3852 OF THE LABOR CODE OF THE STATE OF CALIFORNIA, QUOTED ABOVE, IN A SUIT UNDER THAT SECTION, AS WOULD BE FOR CONSIDERATION AND ALLOWANCE IN A CLAIM FILED UNDER THE 1921 ACT, AS AMENDED, BY THE PERSON SUSTAINING THE DAMAGE, AND SHOULD, OF COURSE, IN NO EVENT EXCEED $500, AND ANY AMOUNT PAID SHOULD, OF COURSE, BE IN FULL SETTLEMENT OF ALL CLAIMS IN THE MATTER.