MANSFIELD, District Judge.
In this action pursuant to 42 U.S.C. § 2651 for recovery from an insurance carrier of the reasonable value of hospital and medical care and supplies furnished to a postal employee, Salva T. Tortorici, the Government has moved for summary judgment. Section 2651 provides:
The undisputed facts are as follows:
On June 4, 1966, Mr. Tortorici, acting in the course of his employment as an employee of the United States Post Office, was driving a mail truck on a street in Brooklyn. In an effort to avoid hitting a taxicab that suddenly cut in front of him, he swerved, ran into two parked cars, and was thrown out of his truck, suffering injuries. The taxicab left the scene. As a result of the accident Tortorici was hospitalized at the United States Public Health Service Hospital, Staten Island, which described the accident as follows in its "Third Party Report":
The hospital provided medical care and treatment amounting to $1,936, pursuant to 5 U.S.C. § 8103 and 42 U.S.C. § 251. Thereafter Mr. Tortorici, in accordance with 42 U.S.C. §§ 2651-2653, executed a written assignment assigning to the Government any claim he had for the reasonable value of hospital and medical care.
At the time of the accident defendant insurer had issued a family combination automobile policy in favor of Tortorici covering liability for personal injury, property damage and medical payments. The policy obligated defendant to pay up to certain specific limits to the "insured" which was defined to include not only Mr. Tortorici and guests but also
Coverage "J" of the policy, known as "Protection Against Uninsured Motorists," obligated defendant
An uninsured automobile was defined by the policy to include "a hit and run automobile" (Coverage J(2) (b)), defined as follows:
Tortorici asserted a claim under the Uninsured Motorist provision of his policy, which was settled by defendant's
Plaintiff claims that it is entitled to be treated as an "insured" under the policy for the reason that the Government is a "person" as that term is used in the policy, Government Employees Insurance Co. v. United States, 376 F.2d 836 (4th Cir. 1967); Government Employees Insurance Co. v. United States, 349 F.2d 83 (10th Cir. 1965), cert. denied, 382 U.S. 1026, 86 S.Ct. 646, 15 L.Ed.2d 539, rehearing denied, 383 U.S. 939, 86 S.Ct. 1064, 15 L.Ed.2d 857 (1968), and under 42 U.S.C. §§ 2651-2653 it may recover from an uninsured motorist for hospital and medical care furnished to the insured because of bodily injuries sustained by the insured as a result of the use of an "uninsured automobile". We agree and so conclude. See Government Employees Insurance Co. v. United States, 376 F.2d 836, 837 (4th Cir. 1967); Bernzweig, "An Analysis and Interpretation of the Federal Medical Recovery Act," 64 Colum.L.Rev. 1257, 1268 (1964). The terms of the Uninsured Motorist provision must be construed in favor of the insured, see Ashland Oil and Refining Co. v. Travelers Insurance Co., 368 F.2d 821 (2d Cir. 1966). The interpretation of the policy urged by defendant would defeat the purposes of the Insurance Law of the State of New York, McKinney's Consol. Laws, c. 28, §§ 167(2-a) and 600 and the federal Medical Care Recovery Act, 42 U.S.C. § 2651.
Defendant denies liability on the grounds (1) that plaintiff is expressly excluded from the policy's coverage under "exclusion (c)" of the policy, (2) that an issue of fact exists as to whether Tortorici's bodily injuries were caused by an uninsured vehicle, i. e., a "hit and run automobile" as that term is defined in the policy, and (3) that some issues (negligence, contributory negligence, and damages) are subject to compulsory arbitration under the policy.
"Exclusion (c)" of the policy provides:
Under the above-quoted clause defendant is not obligated to reimburse a workmen's compensation carrier or self-insured under a workmen's compensation or disability law for benefits paid by it. See Matter of Napolitano, 21 N.Y.2d 281, 287, 287 N.Y.S.2d 393, 397, 234 N.E.2d 438, 441 (1967); Matter of Durant, 15 N.Y.2d 408, 260 N.Y.S.2d 1, 207 N.E.2d 600 (1965); Comm'rs of the State Insurance Fund v. Miller, 4 A.D.2d 481, 166 N.Y.S.2d 777 (1957). Plaintiff, however, is neither "a workmen's compensation or disability benefits law". It is the sovereign government of the United States acting pursuant to the Medical Care Recovery Act and not an insurer acting under any workmen's compensation law, state or federal. Cf. Government Employees Insurance Co. v. United States, 376 F.2d 836 (4th Cir. 1967); United States v. Safeco Insurance Company of America (unreported) Case No. 6997 (W.D.Wash., May 19, 1967). The federal government does not, for instance, fall within the definition of "Insurance Carrier" found in New York's Workmen's Compensation Law, McKinney's Consol.Laws, c. 67, § 2(12).
Defendant's contention that Tortorici's accident is not covered by the policy's Uninsured Motorist provision presents a more serious question. Both parties agree that plaintiff would be entitled to recover only upon showing that the accident was caused by a "hit and run automobile", defined in the policy as
Defendant's contention that certain issues must be arbitrated under the policy must be rejected as wholly without merit. No facts are offered in accordance with Rule 56(e) to rebut the uncontradicted proof as to how the accident happened, which establishes negligence and absence of contributory negligence. Furthermore, following the commencement of this suit more than a year ago defendant served an answer in January 1968 which fails to assert arbitration as a defense as required by Rule 8(c), Fed.Rules of Civ.Proc. Under the circumstances, including expiration of almost a year since issue was joined and defendant's submission of other issues to this Court for determination, any right which defendant had to compel arbitration in accordance with 9 U.S.C. § 3 has been waived. Radiator Specialty Co. v. Cannon Mills Inc., 97 F.2d 318, 117 A.L.R. 299 (4 Cir. 1938); Cargo Carriers v. Erie & St. Lawrence Corp., 105 F.Supp. 638 (W.D.N.Y.1952).
Accordingly, pursuant to Rule 56(d), F.R.C.P., the Court finds that a material issue of fact exists as to whether the unidentified taxicab made physical contact with the vehicle driven by plaintiff, and that all other material issues of fact are without substantial controversy. Trial will therefore be limited to the sole material issue of fact presented and if plaintiff establishes by a fair preponderance of the evidence that physical contact was made between the unidentified taxicab and the vehicle driven by Tortorici at the time of the accident, judgment must be awarded in favor of the plaintiff. Otherwise judgment must be awarded in favor of the defendant.
It is so ordered.