B-6466, NOVEMBER 18, 1939, 19 COMP. GEN. 503

B-6466, NOVEMBER 18, 1939, 19 COMP. GEN. 503

PRIVATE PROPERTY - LOSS OR DAMAGE CAUSED BY GOVERNMENT EMPLOYEES - GENERAL RULE AND CLAIMS BY SUBROGEES UNDER SPECIFIC STATUTE IN THE ABSENCE OF A SPECIFIC STATUTORY PROVISION THE GOVERNMENT IS NOT LIABLE FOR LOSS OR DAMAGE RESULTING FROM THE NEGLIGENT ACTS OF ITS OFFICERS AND EMPLOYEES. CLAIMS OF INSURANCE COMPANIES OR OTHER SUBROGEES OF PERSONS WHOSE PROPERTY HAS BEEN DAMAGED AS A RESULT OF NEGLIGENCE OF EMPLOYEES OF THE WORK PROJECTS ADMINISTRATION WHILE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT ARE CLAIMS FOR CONSIDERATION UNDER SECTION 26 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939, 53 STAT. 936, AUTHORIZING ADMINISTRATIVE CONSIDERATION AND PAYMENT OF ,ANY CLAIM" (NOT EXCEEDING $500 AND AS OTHERWISE RESTRICTED THEREIN) ON ACCOUNT OF SUCH DAMAGE. 6 COMP. GEN. 770, AMPLIFIED.

COMPTROLLER GENERAL BROWN TO THE FEDERAL WORKS ADMINISTRATOR, NOVEMBER 18, 1939:

I HAVE YOUR LETTER OF OCTOBER 6, 1939, AS FOLLOWS:

UNDER SECTION 26 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939, THE COMMISSIONER OF WORK PROJECTS IS AUTHORIZED TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE, AND PAY FROM THE APPROPRIATION TO THE WORKS PROJECTS ADMINISTRATION, ANY CLAIM, NOT IN EXCESS OF $500, ARISING OUT OF ITS OPERATIONS ON ACCOUNT OF DAMAGE TO OR LOSS OF PRIVATELY OWNED PROPERTY CAUSED BY THE NEGLIGENCE OF ANY EMPLOYEE OF THE WORKS PROJECTS ADMINISTRATION, WHILE ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT.

THE ADMINISTRATION HAS BEFORE IT FOR CONSIDERATION, SEVERAL CLAIMS OF INSURANCE COMPANIES AS SUBROGEES OF PERSONS WHOSE PROPERTY HAS BEEN DAMAGED AS A RESULT OF THE NEGLIGENCE OF EMPLOYEES OF THE ADMINISTRATION, ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT. THE ACT OF DECEMBER 28, 1922 (42 STAT. 1066; U.S.C. 31, SEC. 215), CONFERS AUTHORITY UPON THE HEADS OF GOVERNMENTAL AGENCIES TO CONSIDER AND DETERMINE CLAIMS OF A SIMILAR NATURE FOR CERTIFICATION, IF FAVORABLY DETERMINED, TO CONGRESS FOR APPROPRIATION FOR PAYMENT. THE ATTORNEY GENERAL OF THE UNITED STATES, ON JUNE 29, 1932, RENDERED AN OPINION, VOL. 36, PAGE 553, TO THE EFFECT THAT SUBROGATION CLAIMS OF INSURANCE COMPANIES COULD BE CONSIDERED UNDER THAT ACT AND CERTIFIED TO THE CONGRESS IN ORDER THAT IT MIGHT DETERMINE WHETHER THE ACT COVERED SUCH CLAIMS BY MAKING APPROPRIATIONS FOR THEIR PAYMENT. SINCE THAT TIME, IT APPEARS THAT THE CONGRESS HAS CONSISTENTLY APPROPRIATED, USUALLY IN THE DEFICIENCY BILLS, SUMS TO PAY FOR CLAIMS OF SUBROGEES, THEREBY EVIDENCING THAT THEY ARE PROPERLY FOR CONSIDERATION UNDER THE ACT CITED.

YOUR OPINION IS THEREFORE REQUESTED AS TO WHETHER CLAIMS OF INSURANCE COMPANIES, AS SUBROGEES, MAY BE CONSIDERED UNDER SECTION 26 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939, AND, IF OTHERWISE PROPER, BE PAID FROM THE APPROPRIATION MADE TO THE WORK PROJECTS ADMINISTRATION. THE ANSWER TO THE FOREGOING SHOULD BE IN THE NEGATIVE, SUCH SUBROGATION CLAIMS WOULD BE CONSIDERED AND IF FAVORABLY DETERMINED, CERTIFIED TO CONGRESS UNDER THE AUTHORITY OF THE ACT OF 1922, FOR APPROPRIATION FOR PAYMENT.

SECTION 26 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939, PUBLIC RESOLUTION NO. 24, APPROVED JUNE 30, 1939, 53 STAT. 936, 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 PROVISIONS OF THIS SECTION APPEAR TO BE SUBSTANTIALLY THE SAME AS THOSE OF THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066, AS FOLLOWS:

THAT AUTHORITY IS HEREBY CONFERRED UPON THE HEAD OF EACH DEPARTMENT * * * TO CONSIDER, ASCERTAIN, ADJUST, AND DETERMINE 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. SUCH AMOUNT AS MAY BE FOUND TO BE DUE TO ANY CLAIMANT SHALL BE CERTIFIED TO CONGRESS AS A LEGAL CLAIM FOR PAYMENT OUT OF APPROPRIATIONS THAT * * * ( ITALICS SUPPLIED.)

IN AN OPINION OF THE ATTORNEY GENERAL, 36 OP. ATTY. GEN. 553, INVOLVING A CLAIM UNDER SAID ACT OF 1922, BY AN INSURER OF THE DAMAGED PROPERTY, IT WAS SAID:

LOOKING ONLY AT THE WORDS OF THE STATUTE AND CONSIDERING THE QUESTION WITHOUT REFERENCE TO PRACTICAL CONSTRUCTION OR PRIOR ADMINISTRATIVE RULINGS, I SEE NO REASON TO DOUBT THAT THE STATUTE COVERS THE CASE SUBMITTED AND REQUIRES ITS CERTIFICATION. THE STATUTE BY ITS TERMS GRANTS AUTHORITY TO DETERMINE "ANY CLAIM" AND TO CERTIFY THE AMOUNT DUE "TO ANY CLAIMANT.' IN ACTING UNDER THE STATUTE, THE HEAD OF A DEPARTMENT IS REQUIRED TO DETERMINE NOT MERELY THE AMOUNT OF THE CLAIM BUT THE PERSON TO WHOM IT IS DUE, AND IN PERFORMING THAT DUTY TO APPLY ESTABLISHED PRINCIPLES OF LAW. ASSUMING THAT SUCH A STATUTE IS TO BE STRICTLY CONSTRUED BECAUSE IN DEROGATION OF THE IMMUNITY OF THE SOVEREIGNTY, A STRICT CONSTRUCTION DOES NOT PERMIT READING INTO THE STATUTE SOMETHING THAT IS NOT THERE OR DISREGARDING ITS PLAIN TERMS. THE WORDS OF THE STATUTE INCLUDE ALL CLAIMS AND ALL CLAIMANTS.

IN THE COURSE OF THAT OPINION REFERENCE WAS MADE TO A DECISION OF FORMER COMPTROLLER GENERAL OF THE UNITED STATES, 6 COMP. GEN. 770, CONSTRUING THE ACT OF JULY 11, 1919, 41 STAT. 131, THE TEXT OF WHICH DOES NOT DIFFER GREATLY FROM THE PROVISIONS OF LAW IN SECTION 26 AND IN THE ACT OF 1922, IN WHICH DECISION IT WAS HELD IN SUBSTANCE THAT AN INSURER OF PROPERTY DAMAGED OR DESTROYED UNDER CIRCUMSTANCES COVERED BY THE ACT OF 1919 COULD NOT BE CONSIDERED A CLAIMANT ENTITLED TO PAYMENT UNDER SAID ACT, AND WHILE THE ATTORNEY GENERAL CONCLUDED THAT SUBROGATION CLAIMS WERE COVERED BY THE ACT OF 1922 HE SUGGESTED THAT IN VIEW OF THE FACT THAT THE MATTER INVOLVED PRIMARILY THE INTENTION OF THE CONGRESS, ALL SUCH SUBROGATION CLAIMS UNDER THE 1922 ACT SHOULD BE SPECIFICALLY CALLED TO THE ATTENTION OF THE CONGRESS WHEN REPORTED SO THAT PROPER CONSIDERATION COULD BE GIVEN BY THAT BODY TO THE STATUS OF THE CLAIMANT.

PROVISIONS SIMILAR TO THOSE OF SECTION 26 IN THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939 WERE CONTAINED IN SECTION 20 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938. WHEN SUCH PROVISION APPEARED FOR THE FIRST TIME IN AN EMERGENCY RELIEF APPROPRIATION ACT IT WAS EXPLAINED BY THE HOUSE OF REPRESENTATIVES COMMITTEE ON APPROPRIATIONS IN REPORT NO. 2317, SEVENTY-FIFTH CONGRESS, THIRD SESSION, AS FOLLOWS:

SECTION 20, A NEW SECTION, AUTHORIZES THE ADMINISTRATOR OF THE WORKS PROGRESS ADMINISTRATION TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE, AND PAY FROM THE APPROPRIATION TO THE WORKS PROGRESS ADMINISTRATION IN THIS TITLE CLAIMS ARISING OUT OF OPERATIONS ACCRUING AFTER THE DATE OF THE JOINT RESOLUTION ON ACCOUNT OF DAMAGE TO OR LOSS OF PROPERTY CAUSED BY NEGLECT OF AN EMPLOYEE OF THE WORKS PROGRESS ADMINISTRATION OR THE NATIONAL YOUTH ADMINISTRATION WHILE ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT. THE AUTHORITY IS LIMITED TO CLAIMS NOT IN EXCESS OF $500 PRESENTED IN WRITING WITHIN 1 YEAR FROM THE DATE OF ACCRUAL THEREOF AND ANY ALLOWANCE BY THE ADMINISTRATOR TO BE ACCEPTED IN FULL SETTLEMENT. UNDER EXISTING LAW THE ADMINISTRATOR HAS THIS AUTHORITY UP TO $1,000 BUT MUST CERTIFY ALL SUCH ADJUDICATIONS TO CONGRESS FOR APPROPRIATION PRIOR TO PAYMENT. UNDER THIS SECTION MANY SMALL CLAIMS CAN BE EXPEDITIOUSLY HANDLED TO THE GREAT ADVANTAGE OF THE GOVERNMENT AND TO THE SATISFACTION OF THE CLAIMANTS IN RECEIVING PROMPT PAYMENT. CLAIMS BETWEEN $500 AND $1,000 WILL CONTINUE TO BE ADJUDICATED BY THE ADMINISTRATOR AND CERTIFIED TO CONGRESS FOR APPROPRIATION.

THERE IS NOTHING EITHER IN SECTION 26 OR IN SECTION 20 SPECIFICALLY PROVIDING FOR THE PAYMENT OF SUBROGATION CLAIMS, AND THE LEGISLATIVE HISTORY OF SAID SECTION 20 FAILS TO SHED ANY LIGHT UPON THAT PARTICULAR PHASE OF THE MATTER. HOWEVER, THE EXPLANATION QUOTED ABOVE WITH REFERENCE TO SECTION 20 WOULD APPEAR TO INDICATE THAT WHAT WAS INTENDED WAS THE PROMPT PAYMENT OF THE CLAIMS IN QUESTION UNDER FUNDS APPROPRIATED FOR RELIEF PURPOSES RATHER THAN REQUIRING THAT SUCH CLAIMS BE REPORTED TO THE CONGRESS FOR APPROPRIATION UNDER THE 1922 ACT, WHEN THE CLAIMS ARE NOT IN EXCESS OF $500.

IT IS WELL SETTLED THAT IN THE ABSENCE OF A SPECIFIC STATUTORY PROVISION THE GOVERNMENT IS NOT LIABLE FOR LOSS OR DAMAGES RESULTING FROM THE NEGLIGENT ACTS OF ITS OFFICERS AND EMPLOYEES. GERMAN BANK V. UNITED STATES, 148 U.S. 573, 579. HOWEVER, THE APPARENT PURPOSE OF SECTION 26 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939 AND OF SECTION 20 IN THE PRIOR ACT WAS, AMONG OTHER THINGS, TO PARTIALLY REMOVE OR SURRENDER THIS IMMUNITY FROM LIABILITY SO AS TO PERMIT PAYMENT FROM FUNDS PROVIDED BY SAID ACT OF "ANY CLAIM" OF $500 OR LESS ARISING OUT OF THE OPERATIONS THEREUNDER AND INVOLVING DAMAGE TO OR LOSS OF PRIVATELY OWNED PROPERTY CAUSED BY NEGLIGENCE OF WORK PROJECTS ADMINISTRATION EMPLOYEES WHILE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT.

THE LAW IS WELL SETTLED THAT 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. SEE 33 C.J. 43, AND CASES THERE CITED. THERE IS NOTHING IN THE LANGUAGE OF THE PROVISION OF LAW HERE IN QUESTION NOR IN THE LEGISLATIVE HISTORY THEREOF TO INDICATE AN INTENTION THAT THIS RULE OF SUBROGATION SHOULD NOT APPLY WITH RESPECT TO CLAIMS FILED UNDER SAID PROVISION. ON THE CONTRARY, THE USE OF THE BROAD AND COMPREHENSIVE TERM "ANY CLAIM" WOULD APPEAR TO COVER ALL CLAIMS OF THE TYPE DESCRIBED WHEN FILED BY ANY PERSON TO WHOM THE UNITED STATES WOULD HAVE BEEN LIABLE PRIOR TO THE ENACTMENT OF THE STATUTE BUT FOR ITS SOVEREIGN IMMUNITY.

AS NOTED IN YOUR LETTER, THE CONGRESS HAS SANCTIONED THE PAYMENT OF CLAIMS OF INSURANCE COMPANIES UNDER THE ACT OF 1922, AND IT IS TO BE NOTED, ALSO, THAT IN AT LEAST ONE INSTANCE WHERE THE CONGRESS CONTEMPLATED THE EXCLUSION OF CERTAIN INSURANCE COMPANIES FROM THE TERMS OF A RELIEF STATUTE IT SPECIFICALLY SO PROVIDED. SEE THE ACT OF AUGUST 27, 1935, 49 STAT. 2194, FOR THE RELIEF OF CERTAIN CLAIMANTS WHO SUFFERED LOSS BY FIRE IN THE STATE OF MINNESOTA DURING OCTOBER 1918, IN WHICH IT WAS PROVIDED THAT "NOTWITHSTANDING THE TERMS AND CONDITIONS OF ANY POLICY OF INSURANCE, OR THE PROVISIONS OF ANY LAW, NO FIRE INSURANCE COMPANY, EXCEPT FARMERS' MUTUAL FIRE-INSURANCE COMPANIES, SHALL HAVE ANY RIGHTS IN AND TO FUNDS HEREIN APPROPRIATED, THE PAYMENTS HEREIN PROVIDED FOR, NOR TO ANY RIGHT OF SUBROGATION WHATSOEVER.'

ANSWERING YOUR QUESTION SPECIFICALLY, I HAVE TO ADVISE THAT CLAIMS OF INSURANCE COMPANIES OR OTHER SUBROGEES OF PERSONS WHOSE PROPERTY HAS BEEN DAMAGED AS A RESULT OF NEGLIGENCE OF EMPLOYEES OF THE WORK PROJECTS ADMINISTRATION WHILE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT ARE CLAIMS FOR CONSIDERATION UNDER SECTION 26 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1939, AND, IF OTHERWISE PROPER, MAY BE PAID FROM FUNDS APPROPRIATED BY SAID ACT.