B-157663, OCT. 12, 1965

B-157663, OCT. 12, 1965

TO LIEUTENANT COLONEL C. C. SEMPLE, FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 14, 1965, WITH ENCLOSURES, FORWARDED HERE BY FIRST INDORSEMENT DATED SEPTEMBER 9, 1965, FROM THE DEPARTMENT OF THE ARMY, FINANCE CENTER, INDIANAPOLIS, INDIANA 46249, REQUESTING AN ADVANCE DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON VOUCHER, IN THE AMOUNT OF $1,145, FOR THE ACCOUNT OF RICHARD L. HAMEL, A MINOR, REPRESENTING THE WAIVED PORTION OF THE GOVERNMENT'S CLAIM IN THE CASE OF RICHARD L. HAMEL.

THE RECORD SHOWS THAT ON SEPTEMBER 22, 1963, RICHARD L. HAMEL, THE DEPENDENT SON OF STAFF SERGEANT LOWELL HAMEL, WAS INJURED IN AN AUTOMOBILE ACCIDENT WHILE RIDING IN A CAR OPERATED BY SERGEANT LEON J. KREBSBACH. THE DRIVER OF THE OTHER VEHICLE, MR. JOE H. OWENS, WAS RESPONSIBLE FOR THE ACCIDENT. AS A RESULT OF INJURIES RECEIVED IN THE ACCIDENT RICHARD HAMEL WAS HOSPITALIZED AT THE PORTSMOUTH NAVAL HOSPITAL, PORTSMOUTH, VIRGINIA, FOR 59 DAYS, AND RECEIVED TWO OUTPATIENT TREATMENTS AT MCDONALD ARMY HOSPITAL, FORT EUSTIS, VIRGINIA. THE REASONABLE VALUE OF THE MEDICAL CARE FURNISHED RICHARD HAMEL AT THE AFOREMENTIONED HOSPITALS AMOUNTED TO $2,245.

BY LETTER OF FEBRUARY 11, 1964, MR. OWENS WAS ADVISED THAT PURSUANT TO THE ACT OF SEPTEMBER 25, 1962, PUB.L. 87-693, 76 STAT. 593, 42 U.S.C. 2651 -2653, THE UNITED STATES GOVERNMENT WAS ENTITLED TO RECOVER FROM HIM THE COST OF THE MEDICAL CARE FURNISHED TO RICHARD HAMEL AND A CLAIM WAS STATED AGAINST MR. OWENS IN THE AMOUNT OF $2,229 REPRESENTING THE COST OF MEDICAL CARE FURNISHED RICHARD HAMEL AT THE PORTSMOUTH NAVAL HOSPITAL. SUBSEQUENTLY, MR. HERBERT H. BATEMAN, THE ATTORNEY REPRESENTING RICHARD HAMEL, WAS ADVISED OF THE GOVERNMENT'S CLAIM AGAINST THE THIRD PARTY AND AGREED TO INCLUDE SUCH CLAIM AS AN ITEM OF SPECIAL DAMAGES IN THE PLAINTIFF'S CASE AND TO FORWARD A CHECK IN THE AMOUNT OF $2,245, PAYABLE TO THE TREASURER OF THE UNITED STATES, WHEN SETTLEMENT WAS MADE OR A JUDGMENT OBTAINED IN THE CASE.

BY LETTER DATED FEBRUARY 27, 1965, MR. BATEMAN ADVISED THE STAFF JUDGE ADVOCATE, FORT EUSTIS, VIRGINIA, THAT FOR REASONS SET FORTH THEREIN, HE HAD SETTLED THE CASE FOR $20,000, BUT AFTER DEDUCTING THE ATTORNEY FEES, THE GOVERNMENT'S CLAIM FOR MEDICAL COSTS, AND OTHER MEDICAL EXPENSES, ONLY $12,000 WOULD REMAIN AVAILABLE TO COMPENSATE RICHARD HAMEL FOR HIS PAIN AND SUFFERING AS WELL AS POSSIBLE PERMANENT DISABILITY. THEREFORE, MR. BATEMAN REQUESTED THE GOVERNMENT TO WAIVE ITS CLAIM FOR MEDICAL EXPENSES, IN WHOLE OR IN PART, AS PROVIDED FOR IN SUBSECTION 2652 (B) OF TITLE 42, UNITED STATES CODE. BY LETTER DATED MARCH 16, 1965, MR. BATEMAN WAS ADVISED THAT THE STAFF JUDGE ADVOCATE HAD DETERMINED THE COLLECTION OF THE FULL AMOUNT OF THE GOVERNMENT'S CLAIM OF $2,245 WOULD CREATE A FINANCIAL HARDSHIP UPON RICHARD HAMEL. SEE PARAGRAPH 15C, ARMY REGULATION NO. 25- 110, IN EFFECT AT THE TIME. THEREFORE, THE GOVERNMENT AGREED TO WAIVE $1,145 OF ITS CLAIM AND ACCEPT $1,100 IN FULL SETTLEMENT OF ITS CLAIM FOR THE REASONABLE VALUE OF MEDICAL CARE FURNISHED RICHARD HAMEL. MR. BATEMAN WAS REQUESTED, WHEN SETTLEMENT NEGOTIATIONS WERE COMPLETED, TO HAVE THE DEFENDANT'S INSURER FORWARD A CHECK IN THE AMOUNT OF $1,100 PAYABLE TO THE TREASURER OF THE UNITED STATES, TO THE POST CLAIMS OFFICER, FORT EUSTIS, VIRGINIA.

THE RECORD SHOWS THAT THE DEFENDANT'S INSURER ISSUED ITS CHECK IN THE AMOUNT OF $2,245, PAYABLE TO THE TREASURER OF THE UNITED STATES AND HERBERT BATEMAN, ATTORNEY FOR RICHARD L. HAMEL, PRIOR TO RECEIVING NOTICE THAT THE GOVERNMENT HAD AGREED TO ACCEPT $1,100 IN FULL SETTLEMENT OF ITS CLAIM. APPARENTLY, WHEN DEFENDANT'S INSURER WAS ADVISED THAT THE GOVERNMENT HAD WAIVED A PORTION OF ITS CLAIM, IT REFUSED TO ISSUE A SEPARATE CHECK TO THE GOVERNMENT IN THE REDUCED AMOUNT OF $1,100. THEREFORE, MR. BATEMAN INDORSED THE CHECK FOR $2,245 AND FORWARDED IT TO THE POST CLAIMS OFFICER AND REQUESTED THAT A CHECK BE ISSUED FOR $1,145, THE WAIVED PORTION OF THE CLAIM, PAYABLE TO THE CORPORATION COURT OF NEWPORT NEWS, NEWPORT NEWS, VIRGINIA, FOR THE ACCOUNT OF RICHARD L. HAMEL. YOU ADVISE THAT THE PORTION OF THE CHECK REPRESENTING THE AMOUNT OF THE COMPROMISE SETTLEMENT OF THE CLAIM OF THE UNITED STATES, $1,100, HAS BEEN TRANSFERRED TO MISCELLANEOUS RECEIPTS, ACCOUNT 213099, AND THE WAIVED PORTION OF THE GOVERNMENT'S CLAIM, IN THE AMOUNT OF $1,145, IS ON DEPOSIT IN YOUR SUSPENSE ACCOUNT, 21X6875 52 S44-019. OUR DECISION IS REQUESTED AS TO WHETHER PAYMENT OF THE $1,145 CAN BE MADE TO THE ACCOUNT OF RICHARD L. HAMEL.

THE RECORD SHOWS THAT THE STAFF JUDGE ADVOCATE, PURSUANT TO REGULATIONS IMPLEMENTING THE ACT OF SEPTEMBER 25, 1962, DETERMINED THAT A WAIVER OF PART OF THE GOVERNMENT'S TOTAL CLAIM OF $2,245 SHOULD BE GRANTED IN THE AMOUNT OF $1,145 IN ORDER TO AVOID UNDUE FINANCIAL HARDSHIP UPON RICHARD HAMEL. ACCORDINGLY, THE GOVERNMENT AGREED TO ACCEPT $1,100 IN FULL SETTLEMENT OF ITS CLAIM FOR THE VALUE OF MEDICAL CARE FURNISHED TO RICHARD HAMEL AND, BECAUSE THE WAIVER WAS FOR THE BENEFIT OF RICHARD HAMEL, IT WAS INTENDED THAT HE SHOULD RECEIVE THE WAIVED PORTION OF THE GOVERNMENT'S CLAIM IN THE AMOUNT OF $1,145. THE FACT THAT DEFENDANT'S INSURER APPARENTLY REFUSED TO ISSUE A SEPARATE CHECK TO THE GOVERNMENT FOR $1,100 HAS NO EFFECT UPON THE GOVERNMENT'S WAIVER. THE GOVERNMENT HAS RECEIVED AND ACCEPTED $1,100 IN FULL SETTLEMENT OF ITS CLAIM. THEREFORE, TO GIVE EFFECT TO THE GOVERNMENT'S WAIVER, IT IS CONCLUDED THAT THE REMAINING $1,145 IS PROPERLY FOR PAYMENT TO THE ACCOUNT OF RICHARD L. HAMEL.

ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.