Presenting a live 90-minute webinar with interactive Q&A Federal Tort Claims Act Cases: Recovering for Medical Malpractice, Personal Injury, and Property Damage Limits on the Independent Contractor and Discretionary Function Exceptions WEDNESDAY , JULY 8, 2020 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Michael T . Jaques, Partner, Sessums Dallas , Ridgeland, Miss. J. Callen Sparrow, Partner , Heninger Garrison Davis , Birmingham, Ala. Ian Wallach, Founding Partner , Law Offices of Ian Wallach , Los Angeles The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 1 .
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5 OVERVIEW OF THE FEDERAL TORT CLAIMS ACT J. CALLEN SPARROW
In 1946, Congress enacted the FTCA which authorized recovery from the United States for death, personal injury or property damage caused by the negligence of a federal employee while acting within the scope of their employment. 28 Focus Agree on Set Assess and Resources Results Priorities Adjust USC § 1346(b). 6
The United States is liable. . . “in the same manner and to the same extent as a private individual under like circumstances, but [is not] liable for interest prior to judgment or for punitive damages. ” 28 USC § 2674. Focus Agree on Set Assess and Resources Results Priorities Adjust 7
STATUTE OF LIMITATIONS • Administrative claim must be filed within two years after the cause of action accrues. 28 U.S.C. § 2401(b). • Suit must be filed within six months of the claim’s denial by the agency to which it was presented. 28 U.S.C. § 2401(b). • If the agency fails to make a final disposition of a claim within Focus Agree on Set Assess and Resources Results Priorities Adjust the six months, the claimant may file suit. • The statute is not tolled by infancy or disability. 8
ADMINISTRATIVE CLAIM • Must exhaust administrative remedies. • Notice must be in writing to the appropriate agency – Standard Form 95. • Claim must be signed by the claimant or individual filing claim on behalf of the claimant. • Claim must be filed within two years of accrual. 28 U.S.C. § 2401(b). Focus Agree on Set Assess and • Exceptions: Claims which may not be made pursuant to the FTCA are Resources Results Priorities Adjust found at 28 U.S.C. § 2680. 9
• A written claim is appropriately presented to the government agency pursuant to 28 U.S.C. 28 U.S.C. § 2675(a) when it is received by the agency. • The date of mailing the Notice of Claim does not constitute it being “presented.” 28 C.F.R. § 14.2(a). • The administrative claim must include a claim for money damages in a sum certain. 28 C.F.R. § 2675; 28 C.F.R. § 14.2(a). Focus Agree on Set Assess and • Suit must be filed within six months of denial by the agency. 28 U.S.C. § 2675(a). Resources Results Priorities Adjust • If an agency fails to deny by the end of six months, the claimant may file his claim at any time thereafter, 28 U.S.C. § 2675(a). 10
WHO MAY SUE? • Although the FTCA in general adopts state law to determine whether the facts give rise to a cause of action, it is federal law which determines “who” is entitled to assert a cause of action. Focus Agree on Set Assess and Resources Results Priorities Adjust 11
• Generally speaking, any person who has the capacity to sue and whose claim is within the coverage of the FTCA may institute an action against the US under the Act. Focus Agree on Set Assess and Resources Results Priorities Adjust 12
WHO MAY BE SUED? • The plaintiff must name the “United States” as the party- 28 U.S.C. § defendant. There is no other proper defendant. 2679. Focus Agree on Set Assess and Resources Results Priorities Adjust 13
SERVICE Service is properly effected on the United States by serving a copy of the Summons and Complaint to the United States Attorney of the district in which the action is brought as well as by registered or certified mail to the Attorney General of the United States. F.R.C.P. Rule 4(i)(1). Focus Agree on Set Assess and Resources Results Priorities Adjust 14
DAMAGES The FTCA is a waiver of sovereign immunity, granting certain plaintiffs in tort a claim for money damages. • Relief other than money damages is not authorized by the FTCA. • Damages are limited to the amount listed on the written claim presented to the agency. 28 U.S.C. § 2675. Focus Agree on Set Assess and Resources Results Priorities Adjust 15
• The only exception is if an increased amount is “based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim” or “upon allegation and proof of intervening facts relating to the amount of the claim. ” 28 U.S.C. § 2675. • Punitive damages are not allowed. • If state law only allows punitive damages in wrongful death case then plaintiff will be entitled to compensatory damages as “measured by the pecuniary injuries resulting from such death to the persons respectfully, for whose benefits the action was brought. . . ” 28 U.S.C. Focus Agree on Set Assess and § 2674. Resources Results Priorities Adjust 16
APPLICABLE LAW The FTCA provides that liability of the United States will be determined “in accordance with the law of the place where the act or omission occurred. ” 28 U.S.C. § 1346(b). • Tried without a jury to a Federal District Judge. • The FTCA provides a remedy for “ . . .personal injury or death Focus Agree on Set Assess and Resources Results Priorities Adjust caused by the negligent or wrongful act or omission of any employee of the government while acting within scope of his office or employment. . . ” 17
• The remedy of money damages provided by the Federal Tort Claims Act is the exclusive remedy resulting from the negligent act or omission of an employee of the government while acting 28 U.S.C. § within the line and scope of his employment. 2679(b)(1). Focus Agree on Set Assess and Resources Results Priorities Adjust 18
RELEVANT STATUTES 28 U.S.C. § 1346(b) 28 U.S.C. § 1402(b) 28 U.S.C. § 2401(b) 28 U.S.C. § 2402 28 U.S.C. §§ 2671-2680 RELEVANT REGULATIONS Focus Agree on Set Assess and Resources Results Priorities Adjust 28 C.F.R. 14.1 - 14.11 19
THANK YOU J. Callen Sparrow jcsparrow@hgdlawfirm.com Focus Agree on Set Assess and Resources Results Priorities Adjust 20
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IAN WALLACH, LAW OFFICE OF IAN WALLACH PC IAN@WALLACHLEGAL.COM LOS ANGELES, CA 90064 22
EXCEPTIONS • CONTRARY TO WHAT THE U.S. WILL ARGUE….. • THESE EXCEPTIONS ARE TO BE “NARROWLY CONSTRUED” – Whisnant , 400 F. 3d 1177 – Research the cases the USA is relying on – don’t concede that these exceptions are to be reviewed narrowly – they are not. IAN WALLACH, LAW OFFICE OF IAN WALLACH PC IAN@WALLACHLEGAL.COM LOS ANGELES, CA 90064 23
28 U.S.C. § 2671 The Independent Contractor Exception IAN WALLACH, LAW OFFICE OF IAN WALLACH PC IAN@WALLACHLEGAL.COM LOS ANGELES, CA 90064 24
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