B-209848 L/M, NOV 19, 1982, OFFICE OF GENERAL COUNSEL

B-209848 L/M: Nov 19, 1982

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BETHA: THIS IS IN RESPONSE TO YOUR LETTER TO THE COMPTROLLER GENERAL ASKING US TO "REVERSE" THE ACTION OF THE NATIONAL LABOR RELATIONS BOARD IN DENYING YOUR CLAIM UNDER THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964. THE CLAIM WAS FOR DAMAGE TO CLOTHING RESULTING FROM AN AUTOMOBILE ACCIDENT WHILE YOU WERE DRIVING ON OFFICIAL BUSINESS. STATED: "THE RECORD REVEALS THAT THE NEW YORK STATE POLICEMAN WHO RESPONDED TO THE ACCIDENT ISSUED NO VIOLATIONS BUT REPORTED THAT YOU WERE DRIVING TOO FAST FOR CONDITIONS. *** IN APPROVING THE TORT CLAIM. IT WAS DETERMINED THAT THE DAMAGES RESULTED FROM YOUR INABILITY TO MAINTAIN CONTROL OF YOUR VEHICLE WHICH SKIDDED INTO THE GUARDRAIL AND BOUNCED BACK INTO THE PATH OF THE TRUCK.".

B-209848 L/M, NOV 19, 1982, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

MRS. REVA W. BETHA:

THIS IS IN RESPONSE TO YOUR LETTER TO THE COMPTROLLER GENERAL ASKING US TO "REVERSE" THE ACTION OF THE NATIONAL LABOR RELATIONS BOARD IN DENYING YOUR CLAIM UNDER THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964. THE CLAIM WAS FOR DAMAGE TO CLOTHING RESULTING FROM AN AUTOMOBILE ACCIDENT WHILE YOU WERE DRIVING ON OFFICIAL BUSINESS. DISCUSSED BELOW, WE MUST DECLINE TO QUESTION THE BOARD'S ACTION IN YOUR CASE.

IT APPEARS THAT THE BOARD APPROVED AND PAID A CLAIM FILED UNDER THE FEDERAL TORT CLAIMS ACT BY THE OWNER OF THE OTHER VEHICLE INVOLVED IN THE ACCIDENT. THE BOARD'S LETTER TO YOU DATED JULY 21, 1982, DENYING YOUR CLAIM, STATED:

"THE RECORD REVEALS THAT THE NEW YORK STATE POLICEMAN WHO RESPONDED TO THE ACCIDENT ISSUED NO VIOLATIONS BUT REPORTED THAT YOU WERE DRIVING TOO FAST FOR CONDITIONS. *** IN APPROVING THE TORT CLAIM, IT WAS DETERMINED THAT THE DAMAGES RESULTED FROM YOUR INABILITY TO MAINTAIN CONTROL OF YOUR VEHICLE WHICH SKIDDED INTO THE GUARDRAIL AND BOUNCED BACK INTO THE PATH OF THE TRUCK."

IN ORDER TO ALLOW YOUR PERSONAL PROPERTY CLAIM, THE BOARD WOULD HAVE TO DETERMINE THAT THE LOSS OR DAMAGE WAS NOT ATTRIBUTABLE, WHOLLY OR PARTLY, TO NEGLIGENCE ON YOUR PART. 31 U.S.C. SEC. 3721(F)(3) (FORMER 31 U.S.C. SEC. 241(C)(3)). SINCE IT IS IMPOSSIBLE TO FIND THAT A PERSON'S ACTIONS WERE NEGLIGENT FOR PURPOSES OF ONE LAW AND THAT THOSE SAME ACTIONS WERE NOT NEGLIGENT FOR PURPOSES OF ANOTHER LAW, THE BOARD'S ALLOWANCE OF THE TORT CLAIM PRECLUDED IT FROM ALLOWING YOUR CLAIM ALSO. IN THIS CONNECTION, THE ISSUANCE OR NON -ISSUANCE OF A TRAFFIC CITATION IS ONLY ONE FACTOR THE BOARD COULD PROPERLY CONSIDER IN EVALUATING THE TORT CLAIM; IT IS NOT NECESSARILY THE CONTROLLING FACTOR.

WE ARE ENCLOSING A COPY OF A DECISION OF THE COMPTROLLER GENERAL, 58 COMP.GEN. 291 (B-193533, FEBRUARY 15, 1979), DEALING WITH THE IDENTICAL SITUATION, WHICH CONTAINS A MORE DETAILED DISCUSSION. UNDER THIS DECISION, THE BOARD'S ACTION ON YOUR CLAIM WAS CORRECT.

WE REGRET THAT WE ARE UNABLE TO PROVIDE A MORE FAVORABLE RESPONSE.

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