B-147227, NOV. 2, 1961

B-147227, NOV. 2, 1961

TO WILLIAM W. ELLENBERGER, A/1C, USAF, RETIRED:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 1, 1961, WRITTEN ON YOUR BEHALF BY MR. DALE STAHLMAN OF THE AMERICAN LEGION, REQUESTING REVIEW OF THE SETTLEMENT OF MAY 8, 1961, WHICH DISALLOWED YOUR CLAIM FOR $500, REPRESENTING MEDICAL INSURANCE EXPENSES PAID ON YOUR BEHALF BY THE MUTUAL FIRE AND AUTOMOBILE INSURANCE COMPANY. THERE HAS ALSO BEEN RECEIVED HERE LETTER DATED SEPTEMBER 25, 1961, FROM THE HONORABLE GEORGE A. SMATHERS, UNITED STATES SENATE, CONCERNING THE MATTER.

THE RECORD BEFORE US SHOWS THAT ON MARCH 20, 1955, APPARENTLY WHILE ON A WEEK END PASS FROM LINCOLN AIR FORCE BASE, NEBRASKA, YOU WERE INVOLVED IN AN AUTOMOBILE ACCIDENT NEAR EMERALD, NEBRASKA, AND RECEIVED INJURIES FOR WHICH YOU WERE HOSPITALIZED IN ST. ELEZABETH'S HOSPITAL, LINCOLN, NEBRASKA, A CIVILIAN FACILITY, FROM MARCH 20 TO 31, 1955. AFTER THIS PERIOD OF HOSPITALIZATION YOU WERE TRANSFERRED TO AIR FORCE MEDICAL FACILITIES FOR FURTHER TREATMENT UNTIL YOUR SEPARATION FROM THE MILITARY SERVICE. INCIDENT TO YOUR PERIOD OF HOSPITALIZATION AT ST. ELIZABETH'S HOSPITAL, THE MUTUAL FIRE AND AUTOMOBILE INSURANCE COMPANY, CEDAR RAPIDS, IOWA, ISSUED TWO CHECKS, ONE PAYABLE TO YOU AND ST. ELIZABETH'S HOSPITAL IN THE AMOUNT OF $203.65 AND THE OTHER IN THE AMOUNT OF $296.35, PAYABLE TO YOU AND DR. PAUL GOETOWSKI, A TOTAL OF $500, WHICH WAS A MAXIMUM COVERAGE UNDER THEIR POLICY FOR MEDICAL EXPENSE. IT APPEARS FROM THE INFORMATION ON THE CHECKS THAT THE POLICY WAS ISSUED TO EVELYN SCHMIDT, WHO YOU SAY DIED OF INJURIES SUFFERED IN THE ACCIDENT.

IN A LETTER TO YOU DATED DECEMBER 28, 1960, FROM THE MUTUAL FIRE AND AUTOMOBILE INSURANCE COMPANY, CEDAR RAPIDS, IOWA, IT WAS STATED THAT "THIS IS TO ADVISE THAT A REVIEW OF OUR FILE INVOLVING THE ABOVE MENTIONED INSURED REVEALS THAT WE ISSUED TWO DRAFTS TO YOU. ONE WAS DRAFT NUMBER 28636 DATED MAY 10, 1955, PAYABLE TO YOURSELF AND DR. PAUL GOETOWSKI IN THE AMOUNT OF $296.35 AND THE OTHER DRAFT WAS ISSUED MAY 16, 1955, IN THE AMOUNT OF $203.65 PAYABLE TO YOURSELF AND ST. ELIZABETH HOSPITAL. THESE DRAFTS, OF COURSE, TOTAL $500.00 WHICH IS THE LIMIT UNDER OUR POLICY AS FAR AS MEDICAL PAY IS CONCERNED.' YOU APPARENTLY BELIEVE THAT YOU SHOULD BE REIMBURSED BY THE GOVERNMENT FOR THE $500 INSURANCE MEDICAL PAYMENT MADE TO A CIVILIAN HOSPITAL AND DOCTOR INCIDENT TO THE INJURIES RECEIVED BY YOU IN THE AUTOMOBILE ACCIDENT.

YOUR CLAIM WAS DENIED BY THE DEPARTMENT OF THE AIR FORCE AND DISALLOWED BY OUR OFFICE ON THE BASIS OF OUR DECISION OF APRIL 23, 1952, 31 COMP. GEN. 534.

IN REQUESTING REVIEW, MR. STAHLMAN STATES THAT YOU WERE "MADE TO ENDORSE THIS CHECK INVOLUNTARILY TO THE UNITED STATES GOVERNMENT WITHOUT CONGRESSIONAL MANDATE.' PHOTOSTATIC COPIES OF THE DRAFTS REFERRED TO IN THE MUTUAL FIRE AND AUTOMOBILE INSURANCE COMPANY IN THEIR LETTER OF DECEMBER 28, 1960, SHOW CHECK NO. 28636, DATED MAY 10, 1955, MADE PAYABLE TO WILLIAM ELLENBERGER (YOU) AND DR. PAUL GOETOWSKI AND CONTAINS AN ENDORSEMENT ON THE REVERSE SIDE BY YOU AND DR. GOETOWSKI. CHECK NO. 28750, DATED MAY 16, 1955, MADE PAYABLE TO WILLIAM ELLENBERGER (YOU) AND ST. ELIZABETH HOSPITAL AND CONTAINS AN ENDORSEMENT ON THE BACK BY YOU AND A STAMPED ENDORSEMENT BY ST. ELIZABETH'S HOSPITAL FOR PAYMENT TO THEIR ACCOUNT. THERE IS NO EVIDENCE SHOWING THAT THESE CHECKS WERE ENDORSED TO THE UNITED STATES GOVERNMENT. IN OUR DECISION 31 COMP. GEN. 534 IT WAS HELD, QUOTING FROM THE SYLLABUS, THAT:

"WHERE A SERVICEMAN WHILE ON LEAVE OF ABSENCE WAS INVOLVED IN AN AUTOMOBILE ACCIDENT SUSTAINING INJURIES WHICH NECESSITATED HOSPITALIZATION AT A CIVILIAN HOSPITAL, THERE BEING NO GOVERNMENT MEDICAL FACILITIES AVAILABLE IN THE VICINITY OF THE ACCIDENT, AND THE HOSPITAL WAS PARTIALLY REIMBURSED BY AN INSURANCE COMPANY, THE GOVERNMENT IS LIABLE ONLY FOR THE DIFFERENCE BETWEEN THE TOTAL AMOUNT OF THE COST OF THE MEDICAL TREATMENT FURNISHED AND THE AMOUNT PAID TO THE HOSPITAL BY THE INSURANCE COMPANY.'

WE WOULD LIKE TO POINT OUT THAT CONTRARY TO MR. STAHLMAN'S BELIEF, THE ABOVE DECISION WAS NOT BASED ON THE COURT'S DECISION IN THE CASE OF BROOKS V. UNITED STATES, 337 U.S. 49.

IN HIS LETTER OF SEPTEMBER 1, 1961, MR. STAHLMAN STATES THAT THERE IS A MATERIAL DIFFERENCE BETWEEN THE FACTS IN 31 COMP. GEN. 534 AND THE FACTS IN YOUR CASE AND THAT IT IS YOUR CONTENTION THAT THE INSURANCE POLICY UPON WHICH PAYMENT WAS MADE WAS BASED ON OTHER THAN REIMBURSEMENT FOR ACTUAL EXPENSES INCURRED AND THAT IN THE EVENT YOU HAD DIED FROM INJURIES RESULTING FROM THE ACCIDENT, THE AMOUNT ($500) WOULD HAVE BEEN PAID TO YOUR FAMILY. BY WAY OF ANALOGY, MR. STAHLMAN REFERS TO THE CASE OF GORDON V. FIDELITY AND CASUALTY CO. OF NEW YORK, SC SUP.CT. (DECIDED JUNE 7, 1961), 29 U.S. LAW WEEK 2596, VOLUME 29, NO. 49, DATED JUNE 20, 1961. THAT CASE THE COURT SAID THAT SINCE THE PARTIES TO THIS ACTION STIPULATED THAT THE SOLDIER INCURRED NO EXPENSE AND MADE NO CASH OUTLAY FOR THE TREATMENT HE RECEIVED AT AN ARMY HOSPITAL, THE INSURER WAS NOT LIABLE TO HIM FOR THE REASONABLE COST OF HIS HOSPITALIZATION, BECAUSE THE INSURER HAD LIMITED ITS LIABILITY TO PAY ONLY "ALL REASONABLE EXPENSES INCURRED" BY THE SOLDIER. THERE BEING NO OBLIGATION ON THE PART OF THE SOLDIER TO PAY FOR THE HOSPITALIZATION, HE "INCURRED" NO EXPENSE WITHIN THE MEANING OF THE PROVISIONS OF THE INSURANCE POLICY.

WHILE THE INSURANCE POLICY OR A COPY THEREOF, ISSUED TO EVELYN SCHMIDT HAS NOT BEEN FURNISHED, IT WAS POINTED OUT IN 31 COMP. GEN. 534, COPY ENCLOSED, THAT THE STANDARD CLAUSE IN AUTOMOBILE LIABILITY POLICIES FOR THE PAYMENT OF MEDICAL EXPENSES PROVIDING SUBSTANTIALLY FOR PAYMENT "TO OR FOR EACH PERSON" WHO SUSTAINS BODILY INJURY, ETC., AS A RESULT OF AN ACCIDENT INVOLVING THE AUTOMOBILE CONCERNED, HAS FOR ITS SPECIFIC PURPOSE THE PAYMENT OR REIMBURSEMENT (WITHIN THE LIMITS THEREOF) OF EXPENSES INCURRED BY THE INJURED PERSON AND IT IS NOT INTENDED TO ENRICH THE INSURED. THE MEDICAL TREATMENT HERE INVOLVED WAS NOT FURNISHED IN A GOVERNMENT FACILITY AND IT CANNOT BE CONTENDED THAT A SOLDIER INCURS NO LIABILITY FOR MEDICAL TREATMENT OBTAINED BY HIM IN A CIVILIAN MEDICAL FACILITY. HENCE, WE BELIEVE THAT THE GOVERNMENT'S OBLIGATION IN YOUR CASE WAS LIMITED TO REIMBURSEMENT TO THE CIVILIAN HOSPITAL AND DOCTOR OF ANY EXPENSES INCURRED BY YOU OVER AND ABOVE THE $500 WHICH THEY RECEIVED THROUGH YOU AND THE INSURANCE COMPANY.

IN THE CASE OF UNITED STATES V. STANDARD OIL COMPANY OF CALIFORNIA, 332 U.S. 301, CITED BY MR. STAHLMAN IN SUPPORT OF YOUR CLAIM, THE COURT HELD THAT IN THE ABSENCE OF LEGISLATION BY CONGRESS, THE UNITED STATES COULD NOT RECOVER FROM THIRD PARTY TORT FEASORS FOR EXPENSES OF MEDICAL AND HOSPITAL CARE FURNISHED A SOLDIER ON ACCOUNT OF INJURIES SUSTAINED IN A TRAFFIC ACCIDENT. THAT CASE, HOWEVER, INVOLVED THE GOVERNMENT'S RIGHT OF INDEPENDENT RECOVERY FROM A THIRD PARTY TORT FEASOR OF THE COST OF MEDICAL TREATMENT WHICH IT HAD SUPPLIED IN GOVERNMENT FACILITIES AND DID NOT RELATE TO ITS LIABILITY FOR EXPENSES WHICH HAD ALREADY BEEN PAID BY AN INSURANCE CARRIER AND AS TO WHICH AN UNSATISFIED CLAIM NO LONGER EXISTED, THE SITUATION IN YOUR CASE. WE FIND NO MATERIAL DIFFERENCE BETWEEN THE FACTS IN YOUR CASE AND THE FACTS CONSIDERED IN 31 COMP. GEN. 534, AND IT IS OUR VIEW THAT ON THE BASIS OF THE RECORD BEFORE US, YOUR CASE MUST BE CONSIDERED AS COMING WITHIN THE PURVIEW OF THAT DECISION.

REGARDING YOUR CONTENTION OF DURESS IN BEING FORCED TO ENDORSE INSURANCE PAYMENTS MADE TO YOU OVER TO THE CIVILIAN HOSPITAL AND DOCTOR, WE HAVE NO KNOWLEDGE OF SUCH EVENT OCCURRING, BUT IT MIGHT BE STATED THAT SINCE THE CHECKS IN QUESTION WERE MADE OUT JOINTLY TO YOURSELF AND THE CIVILIAN MEDICAL FACILITY AND CIVILIAN DOCTOR INVOLVED, YOU COULD NOT HAVE UTILIZED THE PROCEEDS OF SUCH CHECKS FOR YOURSELF IN ANY EVENT.

ACCORDINGLY, THERE IS NO PROPER BASIS FOR THE PAYMENT OF YOUR CLAIM AND THE SETTLEMENT OF MAY 8, 1961, IS SUSTAINED. WE ARE FORWARDING A COPY OF THIS DECISION TO THE HONORABLE GEORGE A. SMATHERS, UNITED STATES SENATE, AT HIS REQUEST.