The opinion of the court was delivered by: Robert D. Morgan, District Judge.
OPINION AND ORDER ON MOTION TO DISMISS THIRD-PARTY COMPLAINT
The United States filed a third-party complaint against
Standard Mutual Insurance Company, alleging that the Insurance
Company was the liability insurer of Shunick and that the United
States was an additional insured under the omnibus clause of the
liability policy issued to Shunick. It prayed judgment against
the Company for all sums adjudged against the United States in
plaintiff's suit, its costs and the reasonable value of
attorney's fees incurred by it in the defense of plaintiff's
The cause is before the court upon the motion of the Insurance
Company to dismiss the third-party complaint on the ground that
it does not state a cause of action. That motion appears to the
court to be without merit.
The only issue is whether the policy must be construed to
include the United States within the policy definition of
The policy defines "persons insured" to include: "(c) Any other
person or organization legally responsible for the use of (1) an
owned automobile, or (2) a non-owned automobile, if such
automobile is not owned or hired by such person or organization,
provided the actual use thereof is by a person who is an insured
* * *."
The policy of insurance issued by third-party defendant lists
Charles Shunick, Jr. as the named insured, and his occupation as
that of postal clerk for the United States Government.
The reported Tort Claims Act cases, with two exceptions, appear
to have universally held that the United States is an "insured'
under policy provisions similar or identical to that quoted
above. The two exceptions are both cited by the third-party
defendant here. They are Myers v. United States, N.D.Tex.,
241 F. Supp. 515, and Gipson v. Shelley, E.D. Tenn., 219 F. Supp. 915.
The Myers case was reversed by the Court of Appeals. United
States v. Myers, 5 Cir., 363 F.2d 615. The judge who wrote the
Gipson opinion restated his views in McCrary v. United States,
E.D.Tenn., 235 F. Supp. 33, 38, but there held, in deference to
the majority view expressed in conflicting opinions by other
judges of his district, that the United States was an "insured"
in a Tort Claims Act case. It thus appears that neither of those
cases provides authoritative support for the third-party
The third case, upon which reliance is placed by third-party
defendant, involves only the question whether the United States
would be substituted as a defendant in a personal injury suit
filed against a government employee personally. Lipinski v.
Bartko, W.D.Pa., 237 F. Supp. 688.
Judge Frederick O. Mercer, writing for this court in 1965, held
the government to be an "insured" in Adams v. United States,
S.D.Ill., 241 F. Supp. 383. Other cases stating that almost
universal view include Government Employees Ins. Co. v. United
States, 10 Cir., 349 F.2d 83, cert. denied 382 U.S. 1026; United
States v. Myers, 5 Cir., 363 F.2d 615; Taggert v. United States,
M.D. Pa., 262 F. Supp. 572. See cases cited in Government
Employees Ins. Co. v. United States, 349 F.2d at 86, note 4. This
court adheres to the principle pronounced in those cases.
The motion to dismiss the third-party complaint is denied.
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