Safeco Insurance Company of Oregon v. United States Postal Service
Filing
16
ORDER: Granting Motion to Dismiss 9 . This action is dismissed without prejudice. Safeco is granted 21 days to amend its complaint. Plaintiff's claim for attorney fees is dismissed with prejudice. All future dates are canceled and will be reset. Signed on 12/15/2011 by Judge Owen M. Panner. (dkj)
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1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SAFECO INSURANCE COMPANY OF
OREGON, an Oregon Corporation,
Civ. No. Il-3064-PA
Plaintiff,
v.
ORDER
UNITED STATES POSTAL SERVICE,
Defendant.
PANNER, District Judge:
Plaintiff Safeco Insurance Company of Oregon ("Safeco")
brings this action to recover personal injury protection ("PIP")
benefits paid to its insured following injuries sustained by
Safeco's insured in a car crash involving a United States Postal
Se
ce ("USPS")
truck. The USPS moves to dismiss for lack of
subject matter jurisdiction, arguing Sa
applicable wa
ils to identify an
r of the United States' sovereign
irnrn~nity.
grant the USPS motion and grant Safeco leave to amend.
I-ORDER
I
Standards
District courts are courts of limited jurisdiction. Exxon
Mobil Corp. v. Allapattah Servs., Inc., 545
u.s.
546,
552
(2005).
A defendant may move to dismiss under Fed. R. Civ. P. 12(b) (1)
for lack of subject matter jurisdiction. It is presumed that a
district court lacks jurisdiction, "and the burden of
establishing the contrary rests upon the party asserting
jurisdiction." Vacek v. United States Postal Serv., 447 F.3d
1248, 1250 (9th Cir. 2006). The court will grant a defendant's
12(b) (1) motion if the complaint fails to allege fact sufficient
to establish subject matter jurisdiction. Savage v. Glendale
Union High Sch., 343 F.3d 1036, 1039 n.2
(9th Cir. 2003).
Discussion
I. Subject Matter Jurisdiction
Sovereign immunity limits a district court's subject matter
jurisdiction over actions brought against the United States.
Vacek v. United States Postal Service, 447 F.3d 1248,
1250 (9th
Cir. 2006). The United States "is immune from suit unless it has
expressly waived such immunity and consented to be sued." Dunn &
Black, P.S. v. United States, 492 F.3d 1084, 1087-88
(9th Cir.
2007). The scope of any waiver of sovereign immunity is to be
strictly construed in favor of the United States. Id. at 1088
(citation omitted) .
The Federal Tort Claims Act
2-0RDER
("FTCA") waives immunity and
allows claims for damages resulting from injuries caused by the
negligence of a government employee acting within t
scope of
his employment. 28 U.S.C. § 2675(a). District courts have
exclus
jurisdiction over such c
ims. 28 U.S.C. § 1346(b) (1).
The United States is liable for such tort claims "in the same
manner and to the same extent as a private individual under like
circumstances
t
.", 28 U.S.C. § 2674, under the state law of
place where the negligent act occurred, 28 U.S.C. §
1346(b) (1). Therefore, the court treats the United States as it
would a private person in a similar situation and applies state
law to determine liability. LaBarge v. Mariposa Cnty., 798 F.2d
364, 366 (9th Cir. 1986).
The USPS argues that the complaint must be dismissed because
under Oregon law, an insurer may not bring a subrogation suit in
its own name. Safeco argues that
ral law, not state law
applies, and because Safeco is a "real party in interest" under
Rule 17, it may bring this suit in its own name. Safeco's
argument that Oregon's PIP recovery statutes are not applicable
is meritless. Although the Federal Rules of Civil Procedure apply
generally, courts must look to state law to determine the scope
of sovereign i.mmunity. LaBarge, 798 F.2d at 366; Jachetta v.
653 F.3d 898, 904
omitted) ;
2002}. Therefore,
3-0RDER
(9th Cir. 2011) (ci.tat
298 F.3d 1048, n.6 (9th Ci.r.
I must look to Oregon law to determine whether
Safeco states a claim
relief.
In Oregon, an insurer may recover PIP benefits paid as a
result of a motor vehicle accident in three ways. Bachman v.
Genesis Inv.,
Inc., 2011 WL 887558, at *5
(D. Or.)
(citing ORS
742.534, 742.536, and 742.538), Report and Recommendation
adopted, 2011 WL 884589. The "PIP Subrogation" option available
to insurers under ORS 742.538(4) is the only option potentially
available to Safeco here. The subrogation option entitles an
insurer who paid PI? benefits "to the proceeds of any settlement
or judgment that may result from the exercise of any rights of
recovery of the injured person against any person legally
responsible for the accident .
" ORS 742.538(1). Under this
option:
If requested in writing by the insurer, the injured
person shall take, through any representative not in
conflict with the injured person designated by the
insurer, such action as may be necessary or appropriate
to recover such benefits furnished as damages from such
responsible person, such action to be taken in the name
of the injured person .
"
ORS 742.538(4)
(emphasis added). Safeco, and not the insured, is
the named plaintiff in this case. Because a subrogation action
must be taken "in the name of the injured person," the USPS
correctly points out that Safeco's complaint, brought in its own
name, fails to state a claim under Oregon law.
Safeco incorrectly argues that under Fed. R. Civ. P. 17,
because Safeco paid the insured's ?IP bene
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ts, Sa
co is a "real
party in interest" and can bring the
t in its own name.
Safeco's a
reasons. First, as not
Is for two relat
above, Safeco's
thar Oregon law is not applicable here
assu~es
is meritless. Second, Safeco apparently
party in interest" may bring a claim
however, is only a 1
addition to
r the FTCA. The FTCA,
ted waiver of sovereign immunity. In
ing in accordance wi
Civil Procedure, a party pursuing a c
follow the
Federal Rules of
t
im
r the FTCA must
es set out in the FTCA. As
USPS is only Ii
that any "real
icable here, t
Ie as a private person in a similar situation
would be under
state law where t
incident occured. LaBarge
v. Mariposa Cnty., 798 F.2d 364, 366 (9th Cir. 1986).
In support of its argument that
ral law, and not state
law, applies, Safeco cites one case: United States v. Aetna
Casualty & Surety Co., 338 U.S. 366 (1949). Aetna Casualty,
s at hand.
however, is not remotely applicable to
York statute
n.3. There is no
insurer by operation of law. Id. at 368
statute in Oregon. I
the Oregon "PIP sub
the automatic assi
ssue
, as noted above,
tion" option requires t
brought in the name of the insured.
O~S
complaint be
742.538(4). Because of
(under New York law) in Aetna Casualty,
re of whether an
under state law was not at issue.
5-0RDER
New
automatically assigned the
insured's right to t
the question at
m
~ather,
urer stated a claim
question presented
in Aetna Casualty was whether the federal Anti-Assisnment Act
prevented the insurer from suing in its own name.
As
at 367-68.
New York statute in Aetna Casualty is nearly the exact
opposite of the Oregon statute at issue here, Safeco's reliance
on Aetna Casualty is misplaced.
In the alternative, Safeco argues that the Oregon statutes
do not apply because the statutes def
an insured's rights
against a "person," and not the federal government. S a ' s
argument ignores the plain language of the FTCA, which provides
district courts with exclusive jurisdiction over negligence
claims against the United States "under circumstances where the
United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act or
omission occurred." 28 U.S.C. § 1346(b) (1). As noted above, 28
U.S.C.
§
2674 states the United States is liable for such tort
clai~s
"in the same manner and to the same extent as a private
individual under like
rcumstances .
. . " Safeco's argument
that Oregon's PIP statutes do not apply because the United States
is not a person is meritless.
As noted,
court treats the United States as a private
person in a similar s
liabil
uation and applies Oregon law to determine
y. LaBarge, 798 F.2d at 366; Jachetta, 653 F.3d at 904
(citations omitted); Goodman, 298 F.3d at n.6. ORS 742.538
requires the suit be brought
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insured's name. Because
Oregon's PIP benefits statutes do not allow Safeco to bring this
suit in
s own name,
the complaint fails to state a claim.
Safeco argues that even if Oregon's PIP recovery statutes
apply - and there is no doubt that they do here - Safeco should
be allowed to submit evidence of ratif
ion by the insureds
"whereby defendant is assured it will not be sued twice for the
same claim, but only once and by plaintiff." Safeco apparently
requests the court amend the FTCA to allow Safeco's suit in this
instance, provided Safeco assures the government it will only be
sued once. Safeco provides no support for this argument, and the
argument ignores the fact that the unequivocal waiver of immunity
is a prerequisite for this court's jurisdiction. Dunn & Black,
492 F.3d at 1088.
Finally, Sa
or subst
co requests leave under Rule 17(a) (3) to join
ute the insured as plaintiff. Rule 17 (a) (3)
states a
court may not dismiss an action until plaintiff has been allowed
a reasonable time to join or substitute the real party in
interest to the action. Additionally, under Rule 15(a) (2),
I must
freely allow leave to amend "when justice so requires." There is
no surprise or prejudice to the USPS here.
Sa
0
insured as named plaintiffs. By granting
leave to amend the complaint,
I make no determination on
whether plaintiff meets any statute of 1
7-0RDER
USPS was on notice
only change is a
of the claims, which will not change.
substitution of
~he
tations hurdles or any
other requirements of the FTCA.
II. Attorney Fees
The Ninth Circuit"
s reiterat
that a waiver of sovereign
immunity in the FTCA is to be construed narrowly so that the
government is never held liable for a plaintiff's attorney fees,
even if
local substantive law permits a recovery of fees
against a private individual in like circumstances." Anderson v.
United States, 127 F.3d 1190, 1191 (9th
r. 1997)
citation and quotation omitted). Attorneys
ernal
s are not
recoverable under the FTCA and defendant's motion regarding
attorney fees is granted. Pia
iff's cia
for attorneys fees is
dismissed with prejudice.
Conclusion
Defendant's motion to di
ss
dismissed without prejudice. Sa
its compla
. Plaintiff's
im
(#9) is granted. The action is
is grant
21 days to amend
attorney fees is dismissed
with prejudice. All future dates are cancelled and will be reset.
IT IS SO ORDERED.
DATED this
~day
of December, 2011.
OWEN M. PANNER
U.S. DISTRICT JUDGE
8-0RDER
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