BNUMBER:  B-261141
DATE:  November 9, 1995
TITLE:  Debra Dreisbach

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Matter of:Debra Dreisbach

File:     B-261141

Date:     November 9, 1995

DIGEST

An employee on a temporary duty assignment had a government-owned car, 
which had broken down, towed to a car dealership.  The dealership 
arranged for the employee to use a rental car provided through its 
contract with a local car rental agency.  Based on advice given to her 
by her supervisor, the employee purchased collision damage waiver 
insurance and now seeks reimbursement.  The claim may not be paid.  
The Federal Travel Regulation expressly prohibits reimbursement to 
employees for such insurance.  The erroneous advice of an agency 
official may not serve as the basis of a claim otherwise prohibited by 
law.

DECISION

The United States Department of Agriculture asks whether Special Agent 
Debra Dreisbach may be reimbursed for the cost of insurance she 
purchased incident to renting a vehicle while on official business.  
She may not.

BACKGROUND

On June 20, 1994, Ms. Dreisbach was returning from a temporary duty 
assignment in New Jersey to her official duty station in Hyattsville, 
Maryland, when the General Services Administration (GSA) vehicle to 
which she was assigned broke down outside of Philadelphia, 
Pennsylvania.  She called her supervisor, who instructed her to call 
GSA, which advised her to have the car towed to Pacifico Ford in 
Philadelphia for repair.  After doing so, her agency arranged for her 
to pick up another GSA car at the agency's King of Prussia, 
Pennsylvania office.

On July 11, 1994, Ms. Dreisbach was required to return the GSA vehicle 
to the King of Prussia office.  Pacifico Ford then offered to provide 
a rental vehicle to Ms. Dreisbach at no cost until her assigned 
vehicle could be repaired.

Pacifico arranged for this vehicle through its contract with 
Enterprise Rent-A-Car, which also has a contract with the government.  
Enterprise's contract with Pacifico established a daily rental rate of 
$21 and did not include any collision damage waiver insurance.  
Enterprise's government contract uses a daily rate of $29.  However, 
under the government's contract, Enterprise assumes liability for 
damages to its vehicles caused by a government employee.

The Enterprise employee who assisted Ms. Dreisbach informed her that 
if she accepted the vehicle that Pacifico offered to rent, her 
personal insurance would be liable for any damage to the car unless 
she purchased additional insurance herself at a rate of about $10 a 
day.  Ms. Dreisbach telephoned her supervisor, who advised her to 
purchase the insurance, which she did.  Ms. Dreisbach used the rental 
car until August 11, 1994, and accrued costs for the insurance of 
$416.88.

As a matter of general policy, the government is self-insured.  
Accordingly, our decisions and the Federal Travel Regulation (FTR), 
which are discussed below, explicitly prohibit reimbursement for 
collision damage waiver insurance.  The agency is aware of this 
prohibition, but questions whether the facts of this case justify an 
exception.

The agency notes first the insurance was not purchased for a 
government-rented vehicle, but rather for a vehicle rented by a 
third-party, Pacifico Ford.  Under these conditions, it asserts, the 
normal liability protection offered by the Federal Tort Claims Act 
(FTCA) would be doubtful.  Furthermore, the agency notes that, 
although Ms. Dreisbach could have arranged to have the agency rent the 
vehicle under the government's contract, this would have cost the 
agency more than simply paying separately for the insurance for the 
car rented by Pacifico Ford.

OPINION

As we noted above, the government is self-insured.  Specifically with 
regard to the type of insurance involved here, the rule is that in the 
absence of express statutory authority to the contrary, appropriated 
funds are not available for the purchase of insurance to cover loss or 
damage to government property or the liability of government 
employees.  See B-158766, Feb. 3, 1977.

The Federal Travel Regulation expressly states "Agencies may not pay 
or reimburse an employee for collision damage waiver or collision 
damage insurance when official travel in the rental vehicle is 
performed" in the United States and its territories and possessions.  
41 C.F.R.  301-3.2(c)(1).

Erroneous advice may not form the basis for payment of a claim 
otherwise barred by law.  Karla Heerman, B-260861, Aug. 8, 1995, and 
cases cited therein.  Accordingly, we have denied reimbursement for 
collision damage waiver insurance even when the employee's supervisor 
advised the employee to purchase the insurance.  Gene R. Campbell and 
Marvin Douglas, B-181187; B-181180, June 27, 1974.

Finally, although we are not aware of FTCA cases involving vehicles 
rented by third parties, as in this case, we note that coverage under 
the act is not determined by the status of the vehicle, but rather, by 
the status of the employee.  Specifically, we believe that the 
dispositive factor is whether or not the employee is "acting within 
the scope of his office or employment . . . ."  28 U.S.C.  2679.

However, even if Ms. Dreisbach was not covered by the FTCA, it does 
not follow that she is entitled to have the government reimburse her 
insurance costs.  It was precisely to avoid such costs that the FTR 
provision noted above was adopted.

Accordingly, the claim may not be paid.

/s/Seymour Efros
for Robert P. Murphy
General Counsel