Federal Tort Claim Act Basics

 In Tactics

Before a plaintiff can sue a United States agency for the negligence of one of its employees or agents, he must file a tort claim with the agency. Because the United States has only waived its sovereign immunity for negligent acts through the Federal Tort Claims Act,

Common mistake no. 1 – Timing

Claimants must file an administrative claim with the responsible agency within two years of the date of negligence. The agency then has six months to accept or deny the claim; if the agency denies the claim, the claimant then has six months from the agency’s final decision to file suit against the United States. If the agency does not respond within 6 months, the claim is deemed to be denied, and the claimant has six months to file. Claimants should use caution with the two-year deadline, as any failure to properly fill out the claim form may result in a missed deadline.

Common mistake no. 2 – Loss of consortium

Standard form 95 leaves a place for the “claimant’s name,” which may prompt claimants to leave out their family members who have claims for loss of consortium. Some courts have dismissed spousal claims for lack of jurisdiction when the claimant’s spouse failed to file a separate claim. See Swizdor v. United States, 581 F.Supp. 10 (SD Iowa 1983). Others have found that the appearance of the spouse’s name and signature on the form satisfied the FTCA’s requirements. See Loper v. United States, 904 F.Supp. 863 (ND Indiana 1995).

Common mistake no. 3 – Amount of claim

While Washington State law does not require plaintiffs to estimate their losses in a complaint, the Federal Tort Claims Act requires claimants to enter the amount claimed for property damage, personal injury, and wrongful death. Without an amount entered, the claim form is invalid and will be rejected.

If the claimant fails to take into account all of his damages, he will still be held to the amount he enters on the form. For example, if the claimant enters $50,000 and the Court awards him $150,000, he can only receive $50,000. The Court can make an exception if the increased amount is based on newly discovered evidence that was not reasonably discoverable at the time the claim was presented.

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