LATCHUM, Chief Judge.
Whenever the United States is authorized or required to furnish medical care and treatment to a person, injured under circumstances creating a tort liability upon some third person, it is entitled under the federal Medical Care Recovery Act, 42 U.S.C. §§ 2651-2653, to recover from the third person the reasonable value of the care and treatment furnished. The United States seeks in this case to recover from all the named defendants $9,187.00 as the reasonable value of the medical treatment rendered Marshall Carter, a military service veteran, who was injured while riding as a passenger in defendant Forte's automobile that collided with a tractor-trailer operated by defendant Massey and owned by defendant Davis at the intersection of U.S. Route 113 and State Route 20, ½ mile north of Millsboro, Delaware.
The question presented at this juncture by the defendant Forte is the applicability of the Delaware automobile guest statute, 21 Del.C. § 6101, to him in this action brought by the United States under the
Defendant Forte argues that the circumstances creating tort liability with respect to him are subject to the Delaware guest statute, a substantive state law that abolishes a nonpaying passenger's cause of action against a host driver for ordinary negligence.
After carefully considering the arguments of opposing counsel, however, the Court concludes that enforcement of the Act by the United States is not subject to the provisions of the Delaware guest statute. This conclusion is premised on an earlier binding decision by the Third Circuit, Moore v. United States, 469 F.2d 788 (C.A.3, 1972), which considered the impact of a state's family immunity law on a suit to recover medical expenses. There the government sought to recover the reasonable value of medical care furnished to a member of the armed forces who was injured by his wife's negligent operation of an automobile. The narrow question presented to the Court of Appeals was whether a state's family immunity law was available as a defense to the government's suit under the Act. The Court, answering in the negative, held that the state's immunity law merely imposed a legal disability on the right to sue for the negligence of one's spouse or parent and that such laws did not operate to purify the wrongfulness of the tortfeasor's conduct so as to deprive a third person, such as the United States, of its independent right of recovery. Moore, supra, at 791-94.
Like the family immunity law considered in Moore, the Delaware guest statute neither destroys the driver's basic tort liability nor deprives a third person of his right to recover for the driver's ordinary negligence. See Mumford v. Robinson, supra; cf. 2 F. Harper & F. James, The Law of Torts § 16.15 at 959-61 (1956). Therefore, the essential element of a suit by the United States to recover medical expenses —"circumstances creating tort liability"—is present, and a state created limited defense without purgative effect is inapplicable. Moore v. United States, supra; cf. United States v. Haynes, 445 F.2d 907 (C.A.5, 1971); United States v. Housing Authority of the City of Bremerton, 415 F.2d 239 (C.A.9, 1969) (alleged contributory negligence of parents of dependent not available as a defense against the United States); United States v. Gera, 409 F.2d 117 (C.A.3, 1969) (state statute of limitations is not binding on the United States in a suit to recover under the Act).
Accordingly, the Court concludes that enforcement of the Medical Care Recovery Act is not subject to the Delaware automobile guest statute and the defendant Forte's assertion of that statute as an affirmative defense to bar a suit against Forte for ordinary negligence is insufficient as a matter of law and will be stricken from Forte's amended answer.
An order will be entered in accordance with this memorandum opinion.
In a dissenting opinion, Judge Biggs argued that the majority had overruled its earlier decision in Moore. Judge Biggs went on to point out, and I am inclined to agree, that Moore had perhaps gone "too far" and that, in any event, the inconsistencies of Moore and Studivant "present [a] puzzling condition of the law [that] does little justice to the United States or to the States." Id. at 679. See also Moore v. United States, supra, at 794-803 (Biggs, J., dissenting).
Nevertheless, the Studivant majority distinguished Moore, and presumably assured us of its continuing validity, in the following language.