Feds Off the Hook for Fatal Tow-Truck Crash

(CN) - Though a tow truck that ran down a pedestrian was hauling a U.S. Postal Service vehicle at the time, that does not leave the government on the hook, a federal magistrate ruled.

Manfred Nebolsky had been operating a Central Gulf Towing truck when he struck and killed a pedestrian, V.H. Patel, the ruling notes.

After Patel's estate sued Central Gulf and Nebolsky in New Jersey, the company that insured Central Gulf and Nebolsky before to the accident filed a separate suit against them and the U.S. Postal Service.

Though Drive New Jersey Insurance Co. does not blame USPS or any of its employees for the accident, it argues that USPS insurance should apply because the tow truck was towing - and thus "using" - a USPS vehicle when it struck Patel.

USPS removed the case to federal court where U.S. Magistrate Judge Michael Hammer who recommended last week that the court dismiss the claims against the federal defendants for lack of subject matter jurisdiction.

Drive failed to sway the court that the United States cannot substitute in for its agency because the underlying claims sound in contract, not in tort.

"The USPS, as an agency of the United States, is not subject to the laws of the state of New Jersey requiring auto insurance, and indeed, has no insurance policy," the ruling states.

Hammer also emphasized that the United States is self-insured status.

As such, "there is no insurance policy, and therefore no contract, that could serve as the basis for Drive's alleged contract claims," the ruling states. "Although Drive has alluded to a potential contract between the USPS and an unnamed service station, it has failed to specifically identify what contract, if any, existed involving the USPS or the United States and Central Gulf and Nebolsky at the time of the underlying accident. Certainly, no such policy has been produced. Without such an insurance policy, there is no contract for this court to interpret, further weakening Drive's argument."

Tort claims are indeed the issue, the court found.

"In essence, Drive seeks to hold the USPS at least partially liable for [Patel's] state court action," Hammer wrote. "In the absence of a contract, a declaratory judgment in Drive's favor necessarily would require finding that the United States or the USPS is somehow liable in the state court action. Moreover, if, for example, this court were to view Central Gulf and Nebolsky as an independent contractor of the USPS, then Drive is, in effect, seeking to hold the USPS liable for its independent contractor's tort, which the [Federal Tort Claims Act] FTCA prohibits."

Since Drive's claims sound in tort, the United States is the "only appropriate defendant in this matter," according to the ruling.

Drive had wanted to remand the case, but Hammer noted the lack of indication from the company "that it has complied with the administrative requirements of the FTCA, or that the state law tort claims it seeks to pursue are within the narrow waiver of sovereign immunity the FTCA permits."

Hammer's recommendation will go to U.S. District Judge Esther Salas in Newark.

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