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DICKUN v. UNITED STATES

April 14, 1980

MICHAEL DICKUN, Plaintiff
v.
UNITED STATES OF AMERICA, Defendant and Third Party Plaintiff v. RELIANCE INSURANCE COMPANY, Third Party Defendant



The opinion of the court was delivered by: SNYDER

In this action brought under the Federal Tort Claims Act, the Court has before it the Plaintiff's Motion to Dismiss the third party complaint and the Government's Motion to Dismiss the original complaint.

On August 26, 1976, in Monroeville, Pennsylvania, Philip Podobnik, a mail carrier for the U.S. Postal Department, was performing his official duties in his private automobile when he collided with a motorcycle driven by the Plaintiff, Michael Dickun. Plaintiff brought suit against the United States of America for personal injury and property damage under the Federal Tort Claims Act alleging negligence on the part of Podobnik.

 Podobnik was insured by Reliance Insurance Company against liability arising out of the operation of an owned or nonowned vehicle. Under this liability policy, the persons insured as to an owned vehicle included:

 
"Persons Insured. The following are insureds under Part 1:
 
(a) with respect to the owned automobile,
 
(1) the named insured and any resident of the same household,
 
(3) any other person or organization but only with respect to his or its liability because of acts or omissions of an insured under (a)(1) or (2) above; . . . "

 The United States, as an insured under Podobnik's policy, instituted a third party action against Reliance Insurance Company.

 Reliance filed no responsive pleading but offered the Plaintiff the policy limits on bodily injury of $ 15,000, and payment for property damage.

 Plaintiff accepted Reliance's offer and on December 8, 1979, signed a document entitled "Release and Settlement of Claim". *fn1" He moved to dismiss the third party action against Reliance, stating in part:

 TABLE

 
"Reliance Insurance Company has paid to the Plaintiff the sum of $ 15,000, the full extent of its liability together with $ 1,500 designated as property damage thereby discharging and releasing the said Reliance Insurance Company from any and all liability."

 The United States opposed the Motion to Dismiss and simultaneously moved to dismiss Dickun's complaint with prejudice since Dickun's settlement with ...


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