Under federal law, does the military claims act bar a subrogation claim for property damages paid to an insured serviceman for a collision to his personal vehicle while parked outside his military quarters by a military vehicle being used by another serviceman?
Contrary to common misconception, the Federal Tort Claims Act and Military Claims Act do not create causes of action. Rather, the Acts remove the common law bar of sovereign immunity in certain circumstances, but only to the extent permitted by such Acts. According the Military Claims Act, and regulations promulgated there under, a serviceman’s insurer is prohibited from recovery under such Act of any payment to an insured for personal property loss sustained as an “incident to service” and are not entitled to pursue the right of subrogation under the Federal Tort Claims Act. See Fidelity-Phenix Fire Ins Co v. United States, 111 F. Supp. 899, (N.D. Cal. 1953) (where the court held that suits against the Government under Federal Tort Claims Act by insurers to recover for service-connected property losses of military personnel are not authorized, in view of the Military Personnel Claims Act and regulations promulgated thereunder); See also 10 U.S.C.A. § 2733. Military Claims Act; and Army Regulation 27-20.
However, the Military Claims Act is only applicable if the loss incurred is an “incident to service” and such term is used liberally and in a general sense merely to indicate that the loss must bear some substantial relation to the claimant’s military service. Id. Here, it is arguable the loss of the serviceman may not of had the required relationship to his service. See Lund v. United States, 104 F.Supp. 756 (D.C. Mass. 1952) (In Lund, a naval officer drove his private automobile to the Naval Air Station where he was to take a training flight. He parked the automobile in a Government parking area. While he was on the training flight, his automobile was damaged by stones thrown against it by the propeller-wash of a Navy plane which had been improperly taxied. The court held that the damage was not incident to the service of the officer and that recovery might be had under the Tort Claims Act); Sapp v. United States, 153 F.Supp. 496 (W.D. La. 1957) (where the court held where air force sergeant, while off duty and at his home, sustained injuries by reason of airplane crash near his home, such injuries were neither service-connected nor in any sense incident to his military service, and he was not precluded from maintaining action under federal Tort Claims Act for such injuries); But see United States v. United Services Automobile Association, 238 F.2d 364 (8th Cir. 1956) (where the court held that where officer at Naval Air Base parked his automobile, which was not required or used for performance of his official duties, in parking lot furnished for Navy personnel, persons having official business, and authorized visitors, and officer’s automobile was damaged by a crashing airplane, damage to the automobile was ‘incident to military service’ and that United States was not liable to officer under the Federal Tort Claims Act for such damage, and that therefore insurer, which had paid officer for the damage, could not recover from the United States under the act as subrogee and noted that the only contrary reported opinion was in the Lund case). As such, if you are successful in arguing before a Federal Court that the Military Claims Act and regulations promulgated there under are not applicable because the insured serviceman’s loss was not “incident to service”, you would have a claim against the government under the Federal Tort Claims Act according to authority cited herein. See United States v. Aetna Casualty & Surety Co., 338 U.S. 366 (holding an insurer has a right to sue under the Tort Claims Act on a claim to which it has become subrogated by payment to an insured who would have been able to bring such action).
As a practical matter, the 4th Circuit would likely follow the 8th Circuit opinion cited above and bar your recovery, however, the Lund and Sapp district court decisions give you a legitimate leg to stand on in order to litigate the issue which should get you some type of compromised offer given the costs to litigate the issue.