Balik v. Travelers Insurance , 125 F.R.D. 149 ( 1989 )

DECISION AND ORDER

MYRON L. GORDON, Senior District Judge.

This is one of three actions arising from an accident during which one of the plaintiffs, John Balik, was struck by a truck owned by the defendant, Majestic Marine, and driven by another defendant, Terry Schram. The Secretary of Health and Human Services, Otis R. Bowen, also a defendant has caused this case to be removed from state court. The United States, a non-party, has filed a motion for summary judgment and for an order declaring its right to subrogation. For reasons stated herein, the motion will be dismissed.

The amended complaint alleges that the named federal defendants have paid certain medical insurance claims on behalf of Mr. Balik. Since this fact gives rise to a potential subrogated interest, certain defendants were named as parties pursuant to § 803.03, Wis. Stat. However, the movant is not a named party to this action. The language in 42 U.S.C. § 1395y(b) that gives the United States the right to intervene as subrogee is permissive, not automatic. Cf., U.S. v. Housing Authority of the City of Bremerton, 415 F.2d 239, 241 (9th Cir.1969). The United States has not intervened, therefore, I find no basis for entertaining this motion even though no named party has protested this deficiency.

Therefore, IT IS ORDERED that the United States’ motion for summary judgment and declaratory relief be and hereby is dismissed with costs, in favor of the plaintiffs, plus attorney fees in the sum of $500.00.