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Military Claims FTCA, MCA, and other applicable law and legal doctrine.

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Presentation on theme: "Military Claims FTCA, MCA, and other applicable law and legal doctrine."— Presentation transcript:

1 Military Claims FTCA, MCA, and other applicable law and legal doctrine

2 Overview Federal Tort Claims Act Federal Tort Claims Act Military Claims Act Military Claims Act General Claims General Claims Personnel P ClaimsPersonnel P Claims Carrier Recovery CR ClaimsCarrier Recovery CR Claims Pro-Government Property Damage Tort Claims G ClaimsPro-Government Property Damage Tort Claims G Claims Hospital Recovery HR ClaimsHospital Recovery HR Claims

3 References Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2401(b), 2402, 2671, 2672, 2674, 2675, 2676, 2677, 2678, 2679, 2680 Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2401(b), 2402, 2671, 2672, 2674, 2675, 2676, 2677, 2678, 2679, C.F.R. Pt 14, Administrative Claims Under FTCA, 1 Jul C.F.R. Pt 14, Administrative Claims Under FTCA, 1 Jul C.F.R. Part 842, Administrative Claims, Subpt K, Claims Under the FTCA, 1 Jul C.F.R. Part 842, Administrative Claims, Subpt K, Claims Under the FTCA, 1 Jul U.S.C. §§ 2731, 2733, 2735 (Military Claims Act) 10 U.S.C. §§ 2731, 2733, 2735 (Military Claims Act) 32 C.F.R. Pt 842, Administrative Claims, Subpt F, Military Claims Act (MCA), 1 Jul C.F.R. Pt 842, Administrative Claims, Subpt F, Military Claims Act (MCA), 1 Jul 02 DOD Directive , Settlement of Claims Under 10 U.S.C. §§ 2733 and 2734, as amended, 18 Aug 65 (established single service claims responsibility) DOD Directive , Settlement of Claims Under 10 U.S.C. §§ 2733 and 2734, as amended, 18 Aug 65 (established single service claims responsibility) DOD Directive § , Single Service Assignment of Responsibility for Processing of Claims, 9 Jun 90 DOD Directive § , Single Service Assignment of Responsibility for Processing of Claims, 9 Jun 90 AFI , Tort Claims, 9 Aug 02 AFI , Tort Claims, 9 Aug 02 AFI , Personnel and Government Recovery Claims, 1 Mar 97 AFI , Personnel and Government Recovery Claims, 1 Mar 97 JACC Claims Handbook, 30 Sep 97 JACC Claims Handbook, 30 Sep 97 The Military Personnel and Civilian Employees Claim Act (MPCECA), 31 U.S.C. §§3701, 3721 The Military Personnel and Civilian Employees Claim Act (MPCECA), 31 U.S.C. §§3701, 3721

4 Fact Pattern An active duty Chaplain, Capt Abe, received his PCS orders last fall, ordering him to PCS from MacDill AFB, FL, to Randolph AFB, TX. Two months before he was due to PCS, he closed on a house in San Antonio. Unfortunately, three weeks later, his orders were amended, PCSg him to Grand Forks AFB, ND, vice TX. He hired a realtor and put the house on the market, but has received no offers to buy or rent the home. An active duty Chaplain, Capt Abe, received his PCS orders last fall, ordering him to PCS from MacDill AFB, FL, to Randolph AFB, TX. Two months before he was due to PCS, he closed on a house in San Antonio. Unfortunately, three weeks later, his orders were amended, PCSg him to Grand Forks AFB, ND, vice TX. He hired a realtor and put the house on the market, but has received no offers to buy or rent the home. Capt Abes father, recently retired CMSgt Bob, was already bored with retirement. Having never been to Grand Forks before, he agreed to help his son with his PCS by driving one of Capt Abes two cars to ND during his PCS. A week before they left MacDill, the packers came to Capt Abes house. While they were packing his late grandmothers china (his through an inheritance), Capt Abe saw a packer drop a plate. While it did not break, it was severely chipped. Capt Abe shook his head, but did not say anything to the packers, and the plate was packed without comment. Capt Abes father, recently retired CMSgt Bob, was already bored with retirement. Having never been to Grand Forks before, he agreed to help his son with his PCS by driving one of Capt Abes two cars to ND during his PCS. A week before they left MacDill, the packers came to Capt Abes house. While they were packing his late grandmothers china (his through an inheritance), Capt Abe saw a packer drop a plate. While it did not break, it was severely chipped. Capt Abe shook his head, but did not say anything to the packers, and the plate was packed without comment. During a fierce storm on the drive from FL to ND, Capt Abe and CMSgt Bob were involved in a major pileup on a Minnesota highway. While Capt Abe and his father were able to stop their cars before striking a stalled AF truck that had been abandoned by A1C Charlie in their lane, the three cars behind them were not so cautious or lucky. As a result, both of Capt Abes cars were rear-ended. Capt Abe suffered minor injuries requiring stitches from a local clinic. He was released the same day. CMSgt Bob, however, was more seriously injured. Suffering from a concussion and a broken arm, he was required to remain in a hospital for a few nights. Capt Abes car was damaged, but usable and he continued on to GF where he signed in before quickly taking leave to return to his father. The car his father was driving was a total loss. Both parties and cars were insured by USAA. During a fierce storm on the drive from FL to ND, Capt Abe and CMSgt Bob were involved in a major pileup on a Minnesota highway. While Capt Abe and his father were able to stop their cars before striking a stalled AF truck that had been abandoned by A1C Charlie in their lane, the three cars behind them were not so cautious or lucky. As a result, both of Capt Abes cars were rear-ended. Capt Abe suffered minor injuries requiring stitches from a local clinic. He was released the same day. CMSgt Bob, however, was more seriously injured. Suffering from a concussion and a broken arm, he was required to remain in a hospital for a few nights. Capt Abes car was damaged, but usable and he continued on to GF where he signed in before quickly taking leave to return to his father. The car his father was driving was a total loss. Both parties and cars were insured by USAA. One month later, Capt Abes HHG were delivered to his on-base residence. When the items were delivered, he and CMSgt Bob (who stayed in GF to recover from his injuries) found the top of his dining table had a gouge in it that ran the length of the table. He documented it on the appropriate forms. Capt Abe had not yet gotten around to arranging for renters insurance when, that night, a small fire started in his kitchen (due to a wiring problem), damaging his toaster, microwave and kitchen table. CMSgt Bob burned his hand putting the fire out and was treated at ALTRU for a second degree burn and released that same night. One month later, Capt Abes HHG were delivered to his on-base residence. When the items were delivered, he and CMSgt Bob (who stayed in GF to recover from his injuries) found the top of his dining table had a gouge in it that ran the length of the table. He documented it on the appropriate forms. Capt Abe had not yet gotten around to arranging for renters insurance when, that night, a small fire started in his kitchen (due to a wiring problem), damaging his toaster, microwave and kitchen table. CMSgt Bob burned his hand putting the fire out and was treated at ALTRU for a second degree burn and released that same night.

5 FTCA Purpose and basic concepts of the FTCA Purpose and basic concepts of the FTCA Requirements for FTCA claims and some exceptions or defenses to FTCA liability. Requirements for FTCA claims and some exceptions or defenses to FTCA liability. Proper and improper claimants. Proper and improper claimants. FTCA claims processing procedures. FTCA claims processing procedures. Representation and immunity of individual Federal employees. Representation and immunity of individual Federal employees.

6 FTCA Basics A limited waiver of sovereign immunity for claims against the USG for property damage, personal injury or death caused by the negligent or wrongful act or omission of government personnel while acting within the scope of employment A limited waiver of sovereign immunity for claims against the USG for property damage, personal injury or death caused by the negligent or wrongful act or omission of government personnel while acting within the scope of employment United States is liable only as a private person would be liable under the law where the act/omission occurredUnited States is liable only as a private person would be liable under the law where the act/omission occurred Must present claim for a sum certain before right to sue arises; trial is by judge aloneMust present claim for a sum certain before right to sue arises; trial is by judge alone No strict or absolute liability and no punitive damagesNo strict or absolute liability and no punitive damages Only applies to acts/omissions that occur within US territoryOnly applies to acts/omissions that occur within US territory

7 FTCA Elements The District Courts shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1) (emphasis added).

8 An employee of the government… the control test A person is not an employee of the government for FTCA purposes unless the government controls and supervises the day-to-day activities of the individual. Liability generally turns on the degree and quality of control or direction the USAF exercised over the contractor A person is not an employee of the government for FTCA purposes unless the government controls and supervises the day-to-day activities of the individual. Liability generally turns on the degree and quality of control or direction the USAF exercised over the contractor Excludes most independent contractors (e.g. MTF Contract physicians)Excludes most independent contractors (e.g. MTF Contract physicians) May include: persons acting on behalf of a federal agency in an official capacity; persons temporarily or permanently in the service of the United States, whether with or without compensation; Civil Air Patrol (CAP), if performing an AF-assigned mission; and National Guard while engaged in training or duty under 32 U.S.C.May include: persons acting on behalf of a federal agency in an official capacity; persons temporarily or permanently in the service of the United States, whether with or without compensation; Civil Air Patrol (CAP), if performing an AF-assigned mission; and National Guard while engaged in training or duty under 32 U.S.C.

9 Scope of employment According to law of the state where act or omission occurred According to law of the state where act or omission occurred JA legal determination; will consider: JA legal determination; will consider: Time, purpose, place of activityTime, purpose, place of activity Did activity further interests of Air Force?Did activity further interests of Air Force? Activity reasonable or expected of tortfeasors?Activity reasonable or expected of tortfeasors? Ownership or control of property involvedOwnership or control of property involved Expansion of concept: Lawn mowers, dog bites… Expansion of concept: Lawn mowers, dog bites…

10 Conflict of Laws Federal procedural/state substantive law applies Federal procedural/state substantive law applies Federal law – e.g. the statute of limitations, exceptions to liability…Federal law – e.g. the statute of limitations, exceptions to liability… State law – e.g. existence of a cause of action, proper party to bring claim, amount of damages/recognized elements of damages.State law – e.g. existence of a cause of action, proper party to bring claim, amount of damages/recognized elements of damages. Defenses (e.g., contributory or comparative negligence) apply. Defenses (e.g., contributory or comparative negligence) apply. State tort recovery maximums (but not compulsory mediation panels) apply. State tort recovery maximums (but not compulsory mediation panels) apply.

11 Exceptions/Defenses The Discretionary Function exception The Discretionary Function exception Admiralty Claims exception Admiralty Claims exception Intentional Torts exception, Intentional Torts exception, BUT… the FTCA does not bar claims arising from: Misconduct of a federal acting within the scope of employment; orMisconduct of a federal investigative or law enforcement officer acting within the scope of employment; or "Negligent supervision" by Federal superiors"Negligent supervision" by Federal superiors Claims Arising in a Foreign Country exception Claims Arising in a Foreign Country exception Combatant Activities of the Armed Forces "During Time of War" exception Combatant Activities of the Armed Forces "During Time of War" exception Government "Taking" of Air Space Over Land exception Government "Taking" of Air Space Over Land exception Damage Incurred "incident to service" defense Damage Incurred "incident to service" defense Damage Incurred "in performance of duty" by a civilian employee of the U.S. defense Damage Incurred "in performance of duty" by a civilian employee of the U.S. defense Theory of the Unitary Executive Theory of the Unitary Executive

12 The Feres Doctrine Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950) – a trilogy of cases that barred claims by AD members against the US for property damage, personal injury and/or death incurred while on AD Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950) – a trilogy of cases that barred claims by AD members against the US for property damage, personal injury and/or death incurred while on AD Focus on status of the injured party at time of injury, not the tortfeasor Focus on status of the injured party at time of injury, not the tortfeasor AD includes reserve on AD or IDTs; NG on Title 10 or 32 orders, ROTC cadets in training, USAFA cadets; NOT retirees or dependentsAD includes reserve on AD or IDTs; NG on Title 10 or 32 orders, ROTC cadets in training, USAFA cadets; NOT retirees or dependents Includes all derivative claims – look to genesis of the claimIncludes all derivative claims – look to genesis of the claim Incident to service is a question of federal lawIncident to service is a question of federal law Contrast state law control of scope of employment determinations Contrast state law control of scope of employment determinations Rationale of the Supreme Court: Rationale of the Supreme Court: The peculiar and special relationship of a soldier to superiors;The peculiar and special relationship of a soldier to superiors; Permitting lawsuits would have a chilling effect on discipline/military order;Permitting lawsuits would have a chilling effect on discipline/military order; The extreme results that might obtain if such suits were permitted; andThe extreme results that might obtain if such suits were permitted; and Other types of compensation (e.g., disability or survivors benefits) are available.Other types of compensation (e.g., disability or survivors benefits) are available.

13 Feres examples Bars claims: Bars claims: alleging an AD member killed by USs negligence in housing him in barracks known or which should have been known to be unsafe because of defective heating (Feres);alleging an AD member killed by USs negligence in housing him in barracks known or which should have been known to be unsafe because of defective heating (Feres); where large sponge left in active duty member following abdominal surgery (Jefferson consolidated with Feres);where large sponge left in active duty member following abdominal surgery (Jefferson consolidated with Feres); by a widow for medical malpractice causing AD husbands death (Griggs, consolidated with Feres);by a widow for medical malpractice causing AD husbands death (Griggs, consolidated with Feres); for injuries inflicted by the Army on soldiers allegedly administered LSD without their knowledge or consent (United States v. Stanley, 483 U.S. 669 (1987))for injuries inflicted by the Army on soldiers allegedly administered LSD without their knowledge or consent (United States v. Stanley, 483 U.S. 669 (1987)) for loss of consortium when AD spouse disabled by alleged US negligence (Harrison v. United States, 479 F. Supp. 529 (D. Conn. 1979), aff'd, 622 F.2d 573 (2d Cir. 1980));for loss of consortium when AD spouse disabled by alleged US negligence (Harrison v. United States, 479 F. Supp. 529 (D. Conn. 1979), aff'd, 622 F.2d 573 (2d Cir. 1980)); by federal civilian employees for personal injury or death "in the performance of their duties Permits claims: Permits claims: by dependents or retirees for injuries to their own persons/propertyby dependents or retirees for injuries to their own persons/property by military members for injury to family membersby military members for injury to family members

14 FTCA Filing Requirements Statute of Limitations – Claimant must present the claim to the appropriate federal agency within two (2) years after claimant discovers or reasonably should have discovered which caused the injury/damage. Statute of Limitations – Claimant must present the claim to the appropriate federal agency within two (2) years after claimant discovers or reasonably should have discovered the act or omission which caused the injury/damage. Written demand signed by claimant or one who is authorized to act on behalf of claimant and provides evidence of authorization Written demand signed by claimant or one who is authorized to act on behalf of claimant and provides evidence of authorization Demand for money damages in a sum certain Demand for money damages in a sum certain Must include proper documentation Must include proper documentation Presented to an appropriate federal agency; agency has six months to consider claim, after which claimant may deem inaction to be denial and exercise option to file suit Presented to an appropriate federal agency; agency has six months to consider claim, after which claimant may deem inaction to be denial and exercise option to file suit Must then request reconsideration of denied claim or file suit w/in 6 mths of claim denialMust then request reconsideration of denied claim or file suit w/in 6 mths of claim denial File suit in an appropriate United States District CourtFile suit in an appropriate United States District Court Suit may not include allegations of which the government was not fairly put on notice by the administrative claim or increase alleged damage amount absent special circumstancesSuit may not include allegations of which the government was not fairly put on notice by the administrative claim or increase alleged damage amount absent special circumstances

15 FTCA Settlement Authorities Certain claims may only be settled (paid or denied) by AFLSA/JACT or higher settlement authorities Certain claims may only be settled (paid or denied) by AFLSA/JACT or higher settlement authorities Medical malpractice (SJA may settle claims within settlement authority w/approval from JACT)Medical malpractice (SJA may settle claims within settlement authority w/approval from JACT) Legal malpracticeLegal malpractice On-the-job personal injury/death of an employee of a GOV contractorOn-the-job personal injury/death of an employee of a GOV contractor Admiralty and maritime claimsAdmiralty and maritime claims Civil Air Patrol (CAP) claimsCivil Air Patrol (CAP) claims Absent exceptions above, SJA of each Air Force base may: Absent exceptions above, SJA of each Air Force base may: Deny claims presented for $25,000 or less.Deny claims presented for $25,000 or less. Pay claims filed in any amount when payment is for $25,000 or lessPay claims filed in any amount when payment is for $25,000 or less Claims above base settlement authority must be sent to the next higher settlement authority no later than 120 days after receipt. Claims above base settlement authority must be sent to the next higher settlement authority no later than 120 days after receipt. If claim approved, claimant must sign settlement agreement If claim approved, claimant must sign settlement agreement If claim is disapproved and no settlement agreement is signed, suit may be filed If claim is disapproved and no settlement agreement is signed, suit may be filed

16 Individual Representation Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose... the United States shall be substituted as the party defendant." Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose... the United States shall be substituted as the party defendant." Congressional intent: Congressional intent: remove the potential personal liability of Federal employees for common law torts committed within the scope of their employmentremove the potential personal liability of Federal employees for common law torts committed within the scope of their employment provide an exclusive remedy for such torts through an action against the United States under the FTCAprovide an exclusive remedy for such torts through an action against the United States under the FTCA Past or present Air Force military or civilian personnel who are named as individual defendants for personal liability in civil or criminal proceedings for acts or omissions arising from the performance of their official Air Force duties may request representation by DOJ Past or present Air Force military or civilian personnel who are named as individual defendants for personal liability in civil or criminal proceedings for acts or omissions arising from the performance of their official Air Force duties may request representation by DOJ

17 Immunity US is entitled to assert any defense which otherwise would have been available to the US employee whose act or omission gave rise to the claim, as well as any other defenses to which the United States is entitled. US is entitled to assert any defense based upon judicial or legislative immunity which otherwise would have been available to the US employee whose act or omission gave rise to the claim, as well as any other defenses to which the United States is entitled. Persons with statutory immunity: Persons with statutory immunity: Medical personnel 10 U.S.C. § 1089 ("Medical Malpractice Immunity Act").Medical personnel 10 U.S.C. § 1089 ("Medical Malpractice Immunity Act"). Legal personnel 10 U.S.C. § 1054 ("Legal Malpractice Immunity Act").Legal personnel 10 U.S.C. § 1054 ("Legal Malpractice Immunity Act"). Any employee of the government whose act or omission gave rise to the FTCA claim that was the subject of an earlier judgment. See 28 U.S.C. § 2676Any employee of the government whose act or omission gave rise to the FTCA claim that was the subject of an earlier judgment. See 28 U.S.C. § 2676

18 Military Claims Act (MCA) Purpose Purpose Payable & Nonpayable Claims Payable & Nonpayable Claims Proper Claimants Proper Claimants Filing Procedures Filing Procedures Settlement Authorities Settlement Authorities FTCA or MCA? FTCA or MCA?

19 MCA Purpose To pay for property damage, personal injury or death caused by military or civilian employees of the armed forces, acting within the scope of employment, or otherwise incident to the noncombat activities of the armed forces. To pay for property damage, personal injury or death caused by military or civilian employees of the armed forces, acting within the scope of employment, or otherwise incident to the noncombat activities of the armed forces. The MCA is purely an act of grace to file an administrative claim - it generally confers no right to sue if the claim is denied. The MCA is purely an act of grace to file an administrative claim - it generally confers no right to sue if the claim is denied. Settlement "philosophy." Settlement "philosophy." Claimant can't sue, but treat claim as if he/she can.Claimant can't sue, but treat claim as if he/she can. Appellate authority reviews claim de novo.Appellate authority reviews claim de novo. Be "fair/equitable/just."Be "fair/equitable/just."

20 Payable Claims Negligent/Wrongful Act/Omission (Tort) Claims Negligent/Wrongful Act/Omission (Tort) Claims Requires :Requires : Scope of employment of tort feasor Scope of employment of tort feasor Negligent or wrongful act or omission Negligent or wrongful act or omission AND only applies if Federal Tort Claims Act does not applyAND only applies if Federal Tort Claims Act does not apply Overseas Overseas Stateside tort claims of U.S. military members for damage to personal property "incident to service" (usually on base) Stateside tort claims of U.S. military members for damage to personal property "incident to service" (usually on base) Noncombat Activity Claims Noncombat Activity Claims Requires only causal connection between authorized activity and injury/damage (generally no negligence/wrongfulness need be proven)Requires only causal connection between authorized activity and injury/damage (generally no negligence/wrongfulness need be proven) A Noncombat Activity "is particularly military in nature, has little parallel in civilian pursuits, and has been historically considered as furnishing the proper basis for payable claims.A Noncombat Activity "is particularly military in nature, has little parallel in civilian pursuits, and has been historically considered as furnishing the proper basis for payable claims. Practice firing of heavy guns and missiles. Practice firing of heavy guns and missiles. Practice bombing. Practice bombing. Operation/crashes of military spacecraft and military aircraft, including sonic booms and low overflights. Operation/crashes of military spacecraft and military aircraft, including sonic booms and low overflights. Use of military balloons. Use of military balloons.

21 Examples of Nonpayable Claims An MCA claim is not payable if the claim is payable/covered by: An MCA claim is not payable if the claim is payable/covered by: FTCAFTCA International Agreement Claims Act to include claims processed IAW Status of Forces Agreements (SOFA claims)International Agreement Claims Act to include claims processed IAW Status of Forces Agreements (SOFA claims) Foreign Claims ActForeign Claims Act Air Force Admiralty Claims ActAir Force Admiralty Claims Act National Guard Claims ActNational Guard Claims Act Military Personnel and Civilian Employees Claims ActMilitary Personnel and Civilian Employees Claims Act The Federal Employees Compensation Act or the Longshore and Harbor Workers Compensation Act (workers comp for civilian employees)The Federal Employees Compensation Act or the Longshore and Harbor Workers Compensation Act (workers comp for civilian employees) MCA claim also is unpayable if based on: MCA claim also is unpayable if based on: A claim excluded by 28 U.S.C. § 2680 (most FTCA statutory exclusions)A claim excluded by 28 U.S.C. § 2680 (most FTCA statutory exclusions) Combat activities of military forces during warCombat activities of military forces during war Personal injury or death of military personnel or civilian employees "incident to servicePersonal injury or death of military personnel or civilian employees "incident to service Taking of property as by technical trespass or overflight of aircraftTaking of property as by technical trespass or overflight of aircraft Purely the negligent or wrongful act of the claimantPurely the negligent or wrongful act of the claimant A contract (look to the contract)A contract (look to the contract) The exercise/performance of, or failure to exercise/perform, a discretionary function or dutyThe exercise/performance of, or failure to exercise/perform, a discretionary function or duty MCA claim is also unpayable if its not in the best interest of the government to pay it MCA claim is also unpayable if its not in the best interest of the government to pay it

22 Claimants Proper Claimants Proper Claimants Citizens and inhabitants of U.S.Citizens and inhabitants of U.S. U.S. military personnel and civilian employees, but not for personal injury or death incident to serviceU.S. military personnel and civilian employees, but not for personal injury or death incident to service Persons in a foreign country who are not inhabitants of any foreign country.Persons in a foreign country who are not inhabitants of any foreign country. U.S. states, their political subdivisions, and local governments.U.S. states, their political subdivisions, and local governments. Subrogees (insurers) of proper claimants to the extent they have paid the claim.Subrogees (insurers) of proper claimants to the extent they have paid the claim. Not Proper Claimants (includes subrogees thereof) Not Proper Claimants (includes subrogees thereof) Foreign governments, their agencies, and political subdivisions.Foreign governments, their agencies, and political subdivisions. US government agencies/departments ("interdepartmental waivers")US government agencies/departments ("interdepartmental waivers") Nonappropriated fund instrumentalities.Nonappropriated fund instrumentalities. Inhabitants of foreign countries.Inhabitants of foreign countries.

23 Filing MCA Claims Within two years from time the claimant "discovered or reasonably should have discovered the existence of the act that resulted in the claimed loss." Within two years from time the claimant "discovered or reasonably should have discovered the existence of the act that resulted in the claimed loss." In writing for a sum certain In writing for a sum certain Extent of liability and measurement of damages Extent of liability and measurement of damages In United States - law of the place where the act or omission occurredIn United States - law of the place where the act or omission occurred In foreign countriesIn foreign countries General principles of American tort law General principles of American tort law Standard legal publications Standard legal publications State law/FTCA cases State law/FTCA cases Contributory or comparative negligence applied according to foreign host nation law Contributory or comparative negligence applied according to foreign host nation law Strict or absolute liability never imposedStrict or absolute liability never imposed Punitive damages are not payablePunitive damages are not payable

24 Settlement Authorities NOTE: Authority to PAY depends upon amount can get claimant to accept; authority to DENY depends upon amount claimed. NOTE: Authority to PAY depends upon amount can get claimant to accept; authority to DENY depends upon amount claimed. Secretary of the Air Force: pay or deny a claim for any amount Secretary of the Air Force: pay or deny a claim for any amount The Judge Advocate General The Judge Advocate General Pay $100,000 or lessPay $100,000 or less Deny a claim filed for any amountDeny a claim filed for any amount Authorized to pay $25,000 or less/deny a claim filed for any amount: Authorized to pay $25,000 or less/deny a claim filed for any amount: Deputy Judge Advocate GeneralDeputy Judge Advocate General Director of Civil Law (AFLSA/JAC)Director of Civil Law (AFLSA/JAC) AFLSA/JACT (Chief, branch chiefs)AFLSA/JACT (Chief, branch chiefs) AFLSA/JACE (Chief and Environmental Litigation and Torts Branch Chief) - for environmental torts onlyAFLSA/JACE (Chief and Environmental Litigation and Torts Branch Chief) - for environmental torts only SJAs of each Air Force base may pay $25,000 or less/deny claims filed for $25,000 or lessSJAs of each Air Force base may pay $25,000 or less/deny claims filed for $25,000 or less Settlement by AFLSA/JACT only Settlement by AFLSA/JACT only Medical malpractice (an SJA may settle claims within settlement authority w/JACT approvalMedical malpractice (an SJA may settle claims within settlement authority w/JACT approval Legal malpracticeLegal malpractice On-the-job personal injury or death of an employee of a Government contractorOn-the-job personal injury or death of an employee of a Government contractor Admiralty and maritime claims.Admiralty and maritime claims. Civil Air Patrol (CAP) claimsCivil Air Patrol (CAP) claims

25 Appeals Must be in writing, within 60 days. Must be in writing, within 60 days. Can sue under Federal Tort Claims Act (noncombat activity claims or situations where there is an issue of whether the claimant was incident to service), BUT Can sue under Federal Tort Claims Act (noncombat activity claims or situations where there is an issue of whether the claimant was incident to service), BUT Would have to prove tort liability (primarily negligence).Would have to prove tort liability (primarily negligence). Must file within 6 months of date US mails the denial letterMust file within 6 months of date US mails the denial letter Generally, no judicial review of agency determinations pursuant to Administrative Procedures Act. Generally, no judicial review of agency determinations pursuant to Administrative Procedures Act.

26 FTCA or MCA? Some Practical Considerations If a claim involves a noncombat activity (e.g., sonic booms, aircraft crashes), process the claim under the MCA. If a claim involves a noncombat activity (e.g., sonic booms, aircraft crashes), process the claim under the MCA. Doesn't require claimant to prove negligence or us to have to find it to pay claim.Doesn't require claimant to prove negligence or us to have to find it to pay claim. The claimant can still sue under FTCA, but will have to show tort liability.The claimant can still sue under FTCA, but will have to show tort liability. AF can make an advance payment up to $100,000 under MCA but not under FTCA. AF can make an advance payment up to $100,000 under MCA but not under FTCA. Can be a real help after a major disaster, such as an airplane crash.Can be a real help after a major disaster, such as an airplane crash.

27 General Claims Personnel P Claims Personnel P Claims The Military Personnel and Civilian Employees Claim Act (MPCECA), 31 U.S.C. §§3701, 3721The Military Personnel and Civilian Employees Claim Act (MPCECA), 31 U.S.C. §§3701, 3721 Carrier Recovery CR Claims Carrier Recovery CR Claims Pro-Government Property Damage Tort Claims G Claims Pro-Government Property Damage Tort Claims G Claims Hospital Recovery HR Claims Hospital Recovery HR Claims Federal Medical Care Recovery Act, 42 U.S.C. §§ ; andFederal Medical Care Recovery Act, 42 U.S.C. §§ ; and The Coordination of Benefits Act, 10 U.S.C. § 1095.The Coordination of Benefits Act, 10 U.S.C. § 1095.

28 P Claims Overview The Military Personnel and Civilian Employees Claims Act is the claims process that governs loss of, or damage to, personal property incident to service. The Military Personnel and Civilian Employees Claims Act is the claims process that governs loss of, or damage to, personal property incident to service. a gratuitous payment statute designed to lessen the hardships of military life by providing prompt payment for certain types of property loss or damagea gratuitous payment statute designed to lessen the hardships of military life by providing prompt payment for certain types of property loss or damage most commonly personnel transportation claims arising from loss of, or damage to, household goods during a permanent change of station (PCS).most commonly personnel transportation claims arising from loss of, or damage to, household goods during a permanent change of station (PCS). paid with money appropriated by Congresspaid with money appropriated by Congress not subject to judicial reviewnot subject to judicial review

29 P Claims Requirements Includes only tangible personal property and certain associated expenses Includes only tangible personal property and certain associated expenses Includes only property deemed to be reasonable and useful Includes only property deemed to be reasonable and useful Must be substantiated by the claimant Must be substantiated by the claimant Incident to service Incident to service Government-Sponsored Transportation & Storage (e.g. PCS)Government-Sponsored Transportation & Storage (e.g. PCS) Travel (items lost or damaged during actual transportation by the claimant)Travel (items lost or damaged during actual transportation by the claimant) Quarters and Other Authorized PlacesQuarters and Other Authorized Places In the United States, quarters include only USG owned or leased housing whether on or off-base; In the United States, quarters include only USG owned or leased housing whether on or off-base; Overseas, quarters include both on-base and off-base residences Overseas, quarters include both on-base and off-base residences Extraordinary Hazards at quarters and other authorized places (e.g. fires, floods, theft, vandalism, etc.)Extraordinary Hazards at quarters and other authorized places (e.g. fires, floods, theft, vandalism, etc.) Vehicles (e.g. while TDY but not commuting)Vehicles (e.g. while TDY but not commuting) Clothing and Other Items (if caused by fire, flood, hurricane, other unusual occurrence, theft or vandalism)Clothing and Other Items (if caused by fire, flood, hurricane, other unusual occurrence, theft or vandalism) Property Held as EvidenceProperty Held as Evidence Enemy Action, Hostile Acts, Confiscation, Evacuation, or Public Service (e.g. unjust confiscation of property belonging to AF members or employees by a foreign government or its nationals)Enemy Action, Hostile Acts, Confiscation, Evacuation, or Public Service (e.g. unjust confiscation of property belonging to AF members or employees by a foreign government or its nationals)

30 Payable P Claims Payable - Repair or replacement of tangible personal property and fees for replacing certain documents having a raised seal Payable - Repair or replacement of tangible personal property and fees for replacing certain documents having a raised seal Some examples of nonpayable claims Some examples of nonpayable claims Real or intangible personal property (e.g. unused plane tickets)Real or intangible personal property (e.g. unused plane tickets) Any contributory negligence by claimantAny contributory negligence by claimant Incidental expenses and consequential damages, e.g. claims for losses on the sale of a house due to cancelled PCS ordersIncidental expenses and consequential damages, e.g. claims for losses on the sale of a house due to cancelled PCS orders Inconvenience expenses (e.g. rental car costs incurred because a claimants vehicle was not delivered in a timely manner)Inconvenience expenses (e.g. rental car costs incurred because a claimants vehicle was not delivered in a timely manner) Hit and run damage to a POVHit and run damage to a POV Losses payable by insurance.Losses payable by insurance. Claimants with insurance coverage must file claims with their insurers before claims personnel will process most claims Claimants with insurance coverage must file claims with their insurers before claims personnel will process most claims However, for PT claims there is no requirement to file with insurers first for PT claims unless the loss was catastrophic or the loss was caused by an event that may relieve the contractor of liability However, for PT claims there is no requirement to file with insurers first for PT claims unless the loss was catastrophic or the loss was caused by an event that may relieve the contractor of liability

31 P Claim Payments US will pay: US will pay: The lower of repair cost or replacement cost.The lower of repair cost or replacement cost. Established fair market value. Established fair market value. Depreciated current replacement value. Depreciated current replacement value. Up to $100 prior to claimant incurring the expense, more after claimant provides proof of actual payment of the expense (i.e. receipts).Up to $100 prior to claimant incurring the expense, more after claimant provides proof of actual payment of the expense (i.e. receipts). Repair estimatesRepair estimates Only nonrefundable feesOnly nonrefundable fees For appraisals if requiredFor appraisals if required Deductions can be made for: Deductions can be made for: Preexisting Damage (PED)Preexisting Damage (PED) Potential Carrier RecoveryPotential Carrier Recovery Private InsurancePrivate Insurance The maximum allowable payment for settlement of a single claim is currently $40,000, with two exceptions: The maximum allowable payment for settlement of a single claim is currently $40,000, with two exceptions: Up to $100,000 for claims arising from an emergency evacuation or from extraordinary circumstancesUp to $100,000 for claims arising from an emergency evacuation or from extraordinary circumstances Up to $100,000 for the loss of household effects sustained during a change of permanent station when the caused by hostile action by a military forceUp to $100,000 for the loss of household effects sustained during a change of permanent station when the caused by hostile action by a military force SJA has $40,000 settlement authority. SJA has $40,000 settlement authority. SJA acts on requests for recon unless s/he took initial action on the claim or was actively involved in the initial decision - then the request goes to JACC SJA acts on requests for recon unless s/he took initial action on the claim or was actively involved in the initial decision - then the request goes to JACC

32 CR Claims CR claims are pro-government claims that the base claims office asserts against carriers, shippers, moving companies, and warehousemen for reimbursement of monies paid to claimants for the loss or damage to their house-hold goods/POV during a PCS CR claims are pro-government claims that the base claims office asserts against carriers, shippers, moving companies, and warehousemen for reimbursement of monies paid to claimants for the loss or damage to their house-hold goods/POV during a PCS US settles with claimant. Then claims against carrier. US settles with the carrier. Any excess is returned to claimant. US settles with claimant. Then claims against carrier. US settles with the carrier. Any excess is returned to claimant. Subrogation claims based on the law of bailments; Subrogation claims based on the law of bailments;

33 Elements to Proving a CR claim The three elements of a prima facie case against a carrier that the US must prove through facts and documentation, are: The three elements of a prima facie case against a carrier that the US must prove through facts and documentation, are: The goods were tendered to a carrier in a certain condition;The goods were tendered to a carrier in a certain condition; The property was not delivered by the carrier or was delivered by the carrier in a more damaged condition; andThe property was not delivered by the carrier or was delivered by the carrier in a more damaged condition; and The amount of loss or damageThe amount of loss or damage US has six years to assert claim US has six years to assert claim

34 G Claims G-Claims are pro-government claims asserted under the Federal Claims Collection Act by the US against anyone for damage to US property caused by a negligent or wrongful act. G-Claims are pro-government claims asserted under the Federal Claims Collection Act by the US against anyone for damage to US property caused by a negligent or wrongful act. Proper claims Proper claims Property damage or loss caused by negligence and the claim is for $100 or moreProperty damage or loss caused by negligence and the claim is for $100 or more Damage for less than $100 if it can be collected easily.Damage for less than $100 if it can be collected easily. Based on contract and the contracting officer does not intend to assert a claim under the contractBased on contract and the contracting officer does not intend to assert a claim under the contract Arising from the same incident as a hospital recovery claimArising from the same incident as a hospital recovery claim Tortfeasor (or his insurer) presents a claim against the Government arising from the same incident - process both togetherTortfeasor (or his insurer) presents a claim against the Government arising from the same incident - process both together A counterclaim under an international agreementA counterclaim under an international agreement Product liabilityProduct liability NOT reimbursement from military members or civilian employees (while acting during the course and scope of their employment) for claims paid by the government because of their negligence NOT reimbursement from military members or civilian employees (while acting during the course and scope of their employment) for claims paid by the government because of their negligence

35 Processing G Claims JA investigates potential G claims JA investigates potential G claims Gathers reports of survey, investigatory reports, witness statements, etc.Gathers reports of survey, investigatory reports, witness statements, etc. Obtains complete, accurate repair or replacement estimates from government officialsObtains complete, accurate repair or replacement estimates from government officials Evaluates liabilityEvaluates liability Balances cost of collection against probably recoveryBalances cost of collection against probably recovery Staff Judge Advocate asserts claim via certified mail Staff Judge Advocate asserts claim via certified mail Three-year tort Statute of Limitations from date cause of action accrues (i.e. property was damaged) Three-year tort Statute of Limitations from date cause of action accrues (i.e. property was damaged) Authority to compromise Authority to compromise $25,000--Staff Judge Advocate$25,000--Staff Judge Advocate Over $25,000--coordinate with JACCOver $25,000--coordinate with JACC

36 HR Claims Pro-government claims that the AF asserts to recover money for the cost of treating people at military hospitals and clinics Pro-government claims that the AF asserts to recover money for the cost of treating people at military hospitals and clinics Tort-based liability via the Federal Medical Care Recovery Act (FMCRA), 42 U.S.C. §§ Tort-based liability via the Federal Medical Care Recovery Act (FMCRA), 42 U.S.C. §§ Usually duty, breach, causation, damages must be present before asserting an HR claim under the FMCRAUsually duty, breach, causation, damages must be present before asserting an HR claim under the FMCRA The FMCRA applies even in no-fault jurisdictions. There the US may pursue an FMCRA claim as a third party beneficiary.The FMCRA applies even in no-fault jurisdictions. There the US may pursue an FMCRA claim as a third party beneficiary. Contract/insurance based liability via the Coordination of Benefits Act (COB), 10 U.S.C. § 1095 Contract/insurance based liability via the Coordination of Benefits Act (COB), 10 U.S.C. § 1095 COB statute makes the US a third-party beneficiary under health insurance policies/plans, auto insurance providing for medical treatment, workers compensation coverage, and similar plans, policies, and programsCOB statute makes the US a third-party beneficiary under health insurance policies/plans, auto insurance providing for medical treatment, workers compensation coverage, and similar plans, policies, and programs Helps in no-fault statesHelps in no-fault states

37 HR Claims Processing JA investigates and assesses liability JA investigates and assesses liability Asserts FMCRA claims against the tortfeasor, insurer, injured party, injured partys attorney Asserts FMCRA claims against the tortfeasor, insurer, injured party, injured partys attorney Asserts COB claims against the insurer, injured party, injured partys insurer Asserts COB claims against the insurer, injured party, injured partys insurer May not assert claims against any US department/agency or instrumentality (e.g. Medicare, Medicaid, and the VA) May not assert claims against any US department/agency or instrumentality (e.g. Medicare, Medicaid, and the VA) May not assert claims against AD personnel, dependents, or federal employees absent insurance or willful misconduct or gross negligence by the injured party May not assert claims against AD personnel, dependents, or federal employees absent insurance or willful misconduct or gross negligence by the injured party

38 HR Claims Settlement Representation agreement with injured partys attorney Representation agreement with injured partys attorney Intervention or separate lawsuit with Assistant United States Attorney (and JACC approval) Intervention or separate lawsuit with Assistant United States Attorney (and JACC approval) Waiver/Compromise Waiver/Compromise Base level - $25,000Base level - $25,000 JACC - $100,000JACC - $100,000 Department of Justice - over $100,000Department of Justice - over $100,000


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