United States District Court, Northern District of Illinois, E.D
March 5, 1965
JOHN ROBERT GRIEVES, A MINOR, BY MARILYN GRIEVES, HIS MOTHER AND NEXT FRIEND, PLAINTIFF,
ELMER LEVY, DEFENDANT. DEPARTMENT OF PUBLIC AID, INTERVENING PETITIONER.
The opinion of the court was delivered by: Robson, District Judge.
By Private Law 88-359, approved October 13, 1964, Congress
authorized the payment to plaintiff of the sum of $2,000 in full
settlement of the instant federal tort claims cause against the
United States and Elmer Levy for the damages for personal
injuries growing out of an accident on May 2, 1961, in Ottawa,
Illinois, which occurred while Elmer Levy was engaged in his
duties as a postal employee. The Act further provided that the
attorney's fee be not in excess of ten per centum of the
On January 24, 1964, an order was entered granting leave to the
Illinois Department of Public Aid to file an intervening
petition. Plaintiff has now moved to strike the intervening
petition, which claims a lien against the proceeds by virtue of
public aid expended on behalf of plaintiff. The amount of the
lien claimed is $867.45.
Plaintiff contends that since the suit is brought here by
removal under 28 U.S.C. § 1442(a) there is no authority for the
Illinois Public Aid Commission to have intervened herein.
Plaintiff relies heavily on the pertinent decision from this
district in Monroe v. Pape, 221 F. Supp. 635 at 649-650 (N.D.Ill.
(1963)), where the court said:
"The Illinois Public Aid Commission may not
intervene as a matter of right for three reasons. (1)
There is no statute of the United States which
confers such right upon the petitioner, and the State
of Illinois is powerless to create a right to be
heard in a Federal Court where that right does not
exist under the laws of the United States, especially
where the State's claim arises under its own law,
where the State is neither an indispensable nor a
necessary party, and where there is no diversity of
citizenship to support the jurisdictional
requirements of the Court. (2) The petitioner will in
no way be bound by the judgment in this action. (3)
The petitioner will not be adversely affected by the
disposition of this case, and even if it were, this
Court does not have the required `custody' of
property, nor any property as a result of the
judgment in this case which is subject to its control
or disposition. * * *
"Nor may petitioner intervene by permission under
sub-part (b) of Rule 24. There is no statute of the
United States which confers such right on petitioner,
nor does petitioner's claim have a question of law or
fact in common with the main action. Furthermore, the
intervention, if allowed, would most certainly
prejudice the adjudication of the rights of the
plaintiffs. The motion to intervene would be denied
on the basis of this rule alone.
"Even were we to assume that the petitioner might
intervene under the rule, the petition nevertheless
would have to be dismissed on its merits. The
Illinois statute not only denies due process and
equal protection of the laws, as applied to the facts
of this case, but more, it stands in derogation of
the full enforceability of the Federal law and thus
would conflict with the supremacy clause of the
United States Constitution. Art. VI, Cl. 2.
"Accordingly, petitioner's motion to intervene is
The Attorney General for the Illinois Department of Public Aid
states in his brief that there is presently in the custody of the
court the fund of $2,000, which statement the court accepts for
the purpose of this motion inasmuch as the Act to appropriate the
same has been passed, although the court's record does not
reflect the actual receipt thereof. He seeks to differentiate the
instant cause from that of Monroe v. Pape, supra, on the ground
that that was a Federal Civil Rights Statute and not a Federal
Tort Claims Act case as this is. The Attorney General maintains
the Illinois statute, similar to the Federal Rules, allows
intervention of the Department so that it has a charge upon any
judgment given plaintiff, pursuant to Illinois Revised Statutes
1963, Chapter 23, Section 819.
Under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817,
82 L.Ed. 1188 (1937), the federal court is to apply the law of
the state, so that to deny the Department the right to intervene
would deny it a right which the state court grants in protecting
a substantive right created by the state legislature.
The Department further points out that the distribution of the
instant fund would adversely affect a substantial right in the
public interest by depriving the state of its right of recovery
of the $867.45. Intervenor also cites 42 U.S.C. § 603(b)(2)(B),
as recognizing the State's duty to reimburse itself for funds
expended, where possible, from personal injury judgments.
This court, with some reluctance in view of the sum which will
accrue to the injured person, determines that the Illinois
Department of Public Aid has a standing as an intervenor and is
legally entitled to be reimbursed for its lien claim from the
amount receivable under the special appropriations act.
Early in the suit, in answer to the government's
interrogatories, plaintiff stated that she did "not know what the
amounts of the bills were. To the best of my knowledge, bills
were given to State Aid."
The Illinois Revised Statutes 1963, Chapter 23, Section 819,
while not capable of binding the federal government, does bind a
citizen of Illinois who received aid from the state. The Act
"The State Department shall have a charge upon all
claims, demands and causes of action for injuries to
an applicant for or recipient of assistance for the
total amount of assistance provided for the recipient
* * * from the time of injury to the date of recovery
upon such claim, demand or cause of action. * * * The
charge shall attach to any * * * judgment * * *
entered and to any money * * * which may be recovered
on account of such claim, demand, cause of action
* * *."
In Hardwick v. Munsterman, 15 Ill.2d 564
at 566, 155 N.E.2d 638
at 640 (1959), it was held that under this section a subrogation
by operation of law arises. The court said:
"By the furnishing of assistance the Illinois
Public Aid Commission became subrogated to the right
of the plaintiff-recipient in any recovery for his
personal injury in the amount of assistance furnished
during the period in which the recipient had a cause
of action. He is presumed to know of the commission's
possible right to subrogation when he accepts
benefits under the Public Assistance Code."
The basis for this court's disposition of the Department's
right to intervene is the case of United States v. Aetna Casualty
& Surety Co., 338 U.S. 366
, 70 S.Ct. 207, 94 L.Ed. 171 (1949),
wherein it was held that notwithstanding the Federal Statute,
31 U.S.C. § 203, restricting assignments of claims against the
United States, an insurance company may bring an action under the
Federal Tort Claims Act in its own name against the United States
upon a claim to which it has become subrogated by payment to an
insured who would have been able to bring such action. It was
held that the cited statute did not bar transfers by operation of
law. While that decision did not culminate from the same issues
as are here presented, much that was said is very pertinent. The
court was discussing the anti-assignment act as a means of
protecting the government from determination of the rights of
many contenders to the same fund. The court said, at 373, 70
S.Ct. at 212:
"* * * And one of the first such exceptions [to the
rule against assignments] was to transfers by
operation of law. * * *"
The court further said, at 375, 70 S.Ct. at 213:
"* * * [T]he Government may deal with the
substituted representative as it would have dealt
with the claimant if there had been no substitution.
"* * * [T]he Court has always stated the flat
exception of all transfers by operation of law, as
distinguished from voluntary transfers."
The court quotes an Attorney General's opinion, at 377, 70
S.Ct. at 213:
"* * * [T]hat subrogation is a transfer by
operation of law of the right to receive payment of
the amount due."
It further said, at 380, 70 S.Ct. at 215:
"It cannot therefore be seriously contended that
Congress and the executive departments were not
cognizant of the exemption of subrogation claims from
R.S. § 3477 when the Tort Claims Act was passed.
"* * * Rule 17(a) * * * which [was] specifically
made applicable to Tort Claims litigation, provides
that `Every action shall be prosecuted in the name of
the real party in interest,' and of course an
insurer-subrogee, who has substantive equitable
rights, qualifies as such."
The court also said, at 381, 70 S.Ct. at 216:
"* * * No reason appears why such a practice [the
`use' practice] should now be required in cases of
partial subrogation, since both insured and insurer
`own' portions of the substantive right and should
appear in the litigation in their own names."
Although the Department is not an insurer, it is, under the
Illinois law, a subrogee which is entitled to sue in its own
name. If it has a right to a direct suit, it would seem it should
be accorded the same right and standing on an intervention.
The plaintiff's motion to strike the Intervening Petition of
the Illinois Department of Public Aid is therefore denied.
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