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UNITED STATES v. HOUSING AUTH. OF BREMERTON

December 5, 1967

UNITED STATES of America, Plaintiff,
v.
HOUSING AUTHORITY OF the CITY OF BREMERTON, a public body politic and corporate, Defendant



The opinion of the court was delivered by: BEEKS

 BEEKS, District Judge.

 This action was brought by the United States to recover the value of medical services provided by it to a dependent of a serviceman, which services were necessitated by an injury caused by defendant's negligence. The asserted jurisdictional basis for the suit is 42 U.S.C. § 2651.

 Carrie Thomas, the eighteen-month-old daughter of a serviceman, was severely burned on July 17, 1963 when she turned on the hot water faucet in her family's apartment in defendant's housing project. The parties agree that the injury was proximately caused by defendant's negligence. As authorized and required by law, the United States furnished medical and hospital care and treatment to Carrie Thomas, beginning on the day of the accident. On December 5, 1963, less than five months thereafter, Carrie Thomas (by her guardian ad litem) brought a negligence action against the City of Bremerton Housing Authority in state court. The United States had notice of the pendency of that action before it was tried, but made no attempt to intervene or to assert any claim. The trial court's award of damages to Carrie Thomas was affirmed by the Washington Supreme Court in Thomas v. Housing Authority of the City of Bremerton, 71 Wash. 2d 69, 426 P.2d 836 (1967).

 While the state court suit was pending on appeal, the United States instituted this independent action against the Housing Authority to recover the value of the medical and hospital care furnished Carrie Thomas. The right of the United States to recover is controlled by 42 U.S.C. § 2651, which provides, in relevant part:

 
§ 2651. Recovery by United States - Conditions; exceptions; persons liable; amount of recovery; subrogation; assignment
 
(a) In any case in which the United States is authorized or required by law to furnish hospital, medical, surgical, or dental care and treatment * * * to a person who is injured * * * under circumstances creating a tort liability upon some third person * * * to pay damages therefor, the United States shall have a right to recover from said third person the reasonable value of the care and treatment so furnished or to be furnished and shall, as to this right be subrogated to any right or claim that the injured or diseased person, his guardian, personal representative, estate, dependents, or survivors has against such third person to the extent of the reasonable value of the care and treatment so furnished or to be furnished. The head of the department or agency of the United States furnishing such care or treatment may also require the injured or diseased person, his guardian, personal representative, estate, dependents, or survivors, as appropriate, to assign his claim or cause of action against the third person to the extent of that right or claim.
 
Enforcement procedure; intervention; joinder of parties; State or Federal court proceedings
 
(b) The United States may, to enforce such right, (1) intervene or join in any action or proceeding brought by the injured or diseased person, his guardian, personal representative, estate, dependents, or survivors, against the third person who is liable for the injury or disease; or (2) if such action or proceeding is not commenced within six months after the first day in which care and treatment is furnished by the United States in connection with the injury or disease involved, institute and prosecute legal proceedings against the third person who is liable for the injury or disease, in a State or Federal court, either alone (in its own name or in the name of the injured person, his guardian, personal representative, estate, dependents, or survivors) or in conjunction with the injured or diseased person, his guardian, personal representative, estate, dependents, or survivors.

 The three issues raised by the parties, as amended since the pretrial order was submitted, are: (1) whether the United States is barred from bringing this action by its failure to intervene in the state court suit; (2) whether negligence, if any, of Carrie Thomas' parents constitutes a defense in this action; and (3) whether Carrie Thomas' parents were in fact negligent. All other issues, including damages, have been resolved by stipulation. The parties have agreed to submit the two issues of law to the court's decision prior to trial of the issue of fact.

 Defendant contends that under the language of § 2651(b) the United States can bring its own action against the tortfeasor only where no suit has been commenced by the injured party within six months after the first day in which care and treatment is furnished by the Government; and that if (as here) such suit is brought by the injured party within six months, the United States must intervene if it wishes to assert a claim. The United States takes the position that the language of § 2651(b) is permissive, not mandatory, and that therefore the United States is not limited to the two listed means of enforcement of its right of recovery.

 The statute involved in this case, known as the Medical Care Recovery Act, was passed in 1962 in response *fn1" to the Supreme Court's holding in United States v. Standard Oil Co., 332 U.S. 301, 67 S. Ct. 1604, 91 L. Ed. 2067 (1947). In that case, the United States had been obliged to furnish medical services to the victim of a tortious act of a third person. The Supreme Court held that recovery by the United States against the tort-feasor was not available in the absence of specific statutory authority.

 The parties have drawn to the court's attention only three published opinions in which the courts, in interpreting this statute, have grappled with the problem presented in this case. All have been in the district courts, and there is a direct conflict between the respective holdings.

 United States v. York, 261 F. Supp. 713 (W.D.Tenn.1966), is virtually indistinguishable from the case at bar. There, as here, the state court suit had been brought within the six-month period, and resulted in an award of damages to the injured party. But the United States, instead of intervening, brought its own action. The Court held that the claim of the United States was barred for failure to intervene in the state court suit, reasoning that since the Medical Care Recovery Act created a new cause of action ...


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