Georgia Injury Lawyer Blog

Georgia injury lawyers have seen the devastation created by motorists who drink and drive. Many of the most serious automobile accidents and trucking accidents are caused by drunk motorists. A large number of the offenders are repeat or habitual offenders. Several years ago, our firm represented the mother of a young man in a Federal Tort Claims Act wrongful death case. The young man, who was walking home from work on the shoulder of the road, was struck and killed by an FBI agent driving a bureau car who left the scene of the accident. Our investigation would later show that the agent had just left a bar after a night of drinking. The police officer who showed up at his home later that evening recognized the agent because she had previously charged him with DUI on the same road earlier that year. A Twelve Step Recovery book was found on the seat in his car.

A new Georgia law is ratcheting up the penalties for such repeat offenders by making the crime a felony. In order for the charge to be a felony, a certain number of offenses within a certain time period will qualify a driver for the enhanced charge. In the case of DUI, four arrests and three convictions in one year will earn you a felony.

Continue reading "Georgia Cracking Down On Repeat DUI Offenders" »

One of the realities of the Federal Tort Claims Act is that the fees for counsel are limited. If the case is settled pre-suit, the fees are limited to twenty percent (20%). If the case goes to trial before the District Court by way of a bench trial, the fees are increased to twenty-five percent (25%) of the award. As is true of most personal injury claims, attorney’s fees are payable from the amount of the recovery, not in addition to it. The United States is also liable for court costs just as a private party would be, however, attorney’s fees are not considered to be court costs.

As might be imagined, it is difficult to sue the United States in a complex medical malpractice case in a hypothetical claim involving the Veterans’ Administration because in such a case counsel will be limited to a recovery of twenty-five (25%) of attorney’s fees. This is the standard fee that attorneys receive in workers’ compensation cases and is not a significant inducement for counsel to take a complex medical malpractice case involving the government. Nonetheless, Congress has limited the attorney’s fees that one may obtain in these cases and thus the most that an attorney can recover is twenty percent (20%) if the case is settled pre-suit and twenty-five percent (25%) if presented to the District Court via a bench trial.

When a claim is asserted against the United States government, the claim is based on the alleged liability of the United States in accordance with the law of the place where the negligent act or omission occurred. As an example, if a postal truck runs over someone in the State of Georgia, the laws of the State of Georgia will control whether the acts of the postal carrier driver were negligent. The liability of the United States as stated in other entries is the same as would be the liability of a private person. If a private person runs a stop sign and injures a third party, that would be negligence per se as it would violate a Georgia Uniform Rule of the Road statute. Similarly, if postal truck runs the stop sign, this would be negligence per se under Georgia law which state law would control the liability of the United States. Because Federal Tort claims against the United States are controlled by local laws of liability, the injured claimant should confer with counsel where the tort occurred. If the claimant lives in a district other than where the tort occurred, the case can still be filed in the district of residence but the law where the tort occurred will control the case.

Assuming an administrative claim is properly submitted and is denied and a lawsuit is thereafter commenced, the lawsuit must be filed in United States District Court, not in a state court. One advantage of proceeding under the Federal Tort Claims Act is that such a suit can be brought in the Federal Judicial District where the plaintiff resides or where the negligent act or omission occurred. Thus, if a person is traveling, as an example, and is hit by a postal carrier running a stop sign while on vacation, the lawsuit still can be filed where the plaintiff lives. Once the lawsuit is filed, a copy of the Summons and Complaint must be served upon the Attorney General of the United States in Washington, DC and upon the United States Attorney for the District in which the action is brought.

It must be noted that when a Complaint is filed against the United States that the Complaint can only name the United States of America as the defendant. The Complaint cannot name the employee or the federal agency in the Complaint but only the United States of America. As the defendant, United States will have sixty (60) days in which to answer a plaintiff’s Complaint not the typical thirty (30) days. Where to file? U.S. District Court–either where the tort occurred or where the claimant resides. Who to sue? Only the United States of America.

Under the specific provisions of the Federal Tort Claims Act (FTCA) there is no right to a jury trial. See 28 U.S.C. § 2492. This is one of the disadvantages of suing the United States government but because the FTCA is a limited waiver of sovereign immunity, the provisions of the Act control. Simply stated, the limited waiver provisions provide that there is no right to jury trial when suing the United States government. What this means is that once the case is assigned to a United States District Court judge, he or she will not only be the judge that will resolve any legal issues, he or she will also be the Trier of Fact.

Typically the way these cases work, if they cannot be settled, is that a trial will be scheduled in front of the United States District Court. The United States District Court judge will become the finder of fact. Typically, District judges require the parties to submit proposed Findings of Fact and Conclusions of Law in writing prior to the beginning of the trial. Once the trial begins, of course, there is no necessity that the case be quite as argumentative as it might be in front of a jury nor is there any necessity that counsel try the case as he or she would if a jury were present. Nonetheless, the moving party, the claimant must call witnesses under oath, introduce depositions, call experts and otherwise do the same thing that anyone would do before a jury in order to prove the case by a preponderance of the evidence which is the burden of proof. While a District Court judge has the authority, if they wish, to impanel “an advisory jury” to issue a non-binding ruling on the dispute, most judges dispense with this and try the case by themselves.

Damages under the Federal Tort Claims Act are measured by the law of the state in which the tort occurred. Thus, the state statutes control what damages may be obtained. However, there are some differences principally in the context of wrongful death claims. Because every law in every state is different in this regard, suffice it to say that counsel must be familiar with the District Court opinions in their district as well as in their state. The differences can also dictate who has the right ot claim damages - e.g. a spouse or administrator of an estate.

Even though actual damages may be obtained from the United States government for pain and suffering, medical expenses, out-of-pocket expenses caused by the tort, etc., punitive damages are not allowed against the United States. Only compensatory damages may be recovered. While pre-judgment interest is not allowed against the United States, post judgment interest is allowable assuming the government appeals an award from a District Court and loses the appeal. Again, because the law of the state where the tort occurs controls who has the right to seek damages, injured parties should confer with counsel who practice in the area whre the tort occurred.

As indicated in our prior blogs on this subject, when a claim is brought under the Federal Tort Claims Act, it must be initiated via the filing of an administrative claim. The administrative claim should not be filled out in the most sparse form imaginable rather all pertinent details of the claim should be provided. This includes providing all relevant documentation which supports the claim. Indeed, it is somewhat analogous to submitting a settlement package to an insurance company. All information concerning when and where the claim arose, what the claimed negligence or cause of action is based upon, what damages were incurred and how they were calculated and what documentary proof exists to support all of the above. The administrative claim therefore is not simply the filing of the Form 95 but includes filing all pertinent documentation including photographs, medical bills, medical records and any all other supporting documentation. While one can submit a claim without supporting documentation technically this is not a wise course to pursue because the government is not likely to ever engage in any realistic appraisal of such a claim. The more support that is provided the more likely it is that the government may attempt to resolve the claim on an administrative basis which will protect the claimant from having to proceed with litigation with the United States in Federal District Court.

A key part of the administrative claim is to make sure that the amount of money damages are set forth for a “sum certain” that being a definite amount. The claim cannot assert damages in excess of a specified sum but must actually set forth a specific sum. Thus, if one asserts damages, hypothetically in the amount of $75,000.00, then those are the only damages one can seek if the claim is denied and a lawsuit becomes necessary.

Under the FTCA, a plaintiff must first submit an administrative claim to the responsible federal agency prior to the initiation of a lawsuit. The courts have held that the filing of such a claim is a jurisdictional requirement meaning that before the United States government can be sued, a written claim must first be made to the responsible federal agency which the claimant contends is liable for their damages. Many federal agencies have their own regulations governing the filing of such claims but in most cases they are identical to regulations issued by the United States Department of Justice. The usual standard Form 95 Claim Form is that which should be used. It can be located via a Google search and sets forth what information should be provided to the government when a claim is filed.

The time for filing an administrative claim is two (2) years from the date of the accident. Once the administrative claim is filed, the plaintiff must wait for the agency to reject the claim or allow six (6) months to pass before filing suit. The passage of six (6) months without agency rejection may be treated as a denial under the law. In the event that a lawsuit is initiated before the filing of an administrative claim or before the rejection period has expired, the lawsuit can be dismissed for lack of jurisdiction.

Once an agency’s six (6) month rejection period has expired, suit must be brought within a subsequent six (6) month interval or if the agency actively rejects the claim an action must be commenced within six (6) months of the date of the agency’s rejection letter. If a suit is brought more that six (6) months after an agency’s denial of the claim, it could be potentially barred by the statute of limitations.

A key point here is that the submission of administrative claims are absolutely mandatory. The fact that the United States is aware of a potential claim does not in anyway relieve the claimant of his/her burden of filing the claim with the appropriate federal agency involved. Send the Form 95 to the agency responsible for the tort and to its local office and make sure you get confirmation of receipt of the claim via certified mail to be safe. Again, this is a requirement which must be observed if one’s rights are to be protected.

When it comes to torts committed by the government and/or its employees, the beginning and ending place for any analysis is the Federal Tort Claims Act (FTCA). See 28 U.S.C. § 1346. The Federal Tort Claims Act provides a limited waiver of sovereign immunity and allows for money damages against the government for damages, loss of property, personal injury or death. In order to recover under the FTCA, one must show that the damages claimed resulted from a wrongful or negligent act of a government employee acting within the scope of his employment under circumstances where the United States, if a private person, would be liable to the injured person in accordance with the law of the place where the act or omission occurred. See 28 U.S.C. § 1346(b). As we will address in subsequent entries on this subject, there are potential land minds for those who would seek to recover under the Federal Tort Claims Act but who are not familiar with its provisions. The purpose of these blogs therefore will be to provide some general guidance as to how one should go about perfecting a tort claim against the United States of America. In future blogs, we will address the key steps that must be taken in order to do so.

The United States Supreme Court heard arguments Wednesday in a very interesting case. The question before the Court in Pottawattamie County, Iowa, v. McGhee and Harrington is : Do citizens who have been framed by unscrupulous prosecutors for crimes they did not commit have a right to sue the prosecutors when the fraud is finally exposed?

Most public officials have qualified immunity, which means that they can’t be sued personally for actions taken in the course of their public duties unless it can be shown that they willfully violated clearly established statutory or constitutional rights. In almost all cases qualified immunity is enough to prevent suits against public officials.

The position taken by the federal government and being joined in by many state’s attorney generals is not that prosecutors should only be held accountable for wrongful convictions if it can be proven that they proactively and intentionally created false evidence or violated the clear legal and ethical requirements of their position.

But, the government is taking the position that all prosecutors enjoy absolute immunity from lawsuits for actions they take even when they send innocent people to prison for life by fabricating evidence and hiding exculpatory evidence.

Under this argument no prosecutor could ever be sued under any circumstances even if it can be proven conclusively that they intentionally faked evidence and lied to the court, destroying the life of an innocent person.

According to briefs filed in the case, prosecutors in Pottawattamie County, Iowa, solicited false testimony implicating two innocent African-American teens in the murder of a retired police officer in 1977. At trial, the false testimony led to their convictions and they were sentenced to life in prison.

After the false testimony and other exculpatory evidence was discovered, the two men, Curtis McGhee and Terry Harrington, were released after 25 years in prison. They then filed a lawsuit against the prosecutors.

Lawyers for Mr. McGhee and Mr. Harrington argued that police officers who fabricate evidence do not enjoy such absolute protection from a civil lawsuit. They say prosecutors who actively participate in the pre-trial investigation of a case must be held to the same standard as police officers, detectives, and agents, who can be sued if they violate clearly-established constitutional rights.

Our serious injury lawyers often request information from governmental agencies in efforts to help our clients. Many times, despite laws requiring disclosure, our requests are routinely denied or ignored.

The Bush administration has consistently pushed toward secrecy in government. Former Attorney General John Ashcroft had issued an order instructing agencies to lean against releasing information if there was any uncertainty about how it would affect national security.

Now the Congress is fighting this trend by passing legislation which would expand the Freedom of Information Act ( FOIA), increase penalties for noncompliance and make records held by government contractors subject to disclosure.

The bill restores a presumption of disclosure standard which requires agencies to release requested information unless there is a finding that such disclosure could do harm.

Agencies would be required to meet a 20-day deadline for responding to requests. Their FOIA offices would have to forward requests for information to the appropriate agency office within 10 days of receiving them. It they fail to meet the 20-day deadline, agencies would have to refund search and duplication fees for noncommercial requesters. They also would have to explain any redacted information by citing the specific exemption under which the information qualifies. Nonproprietary information held by government contractors also would be subject to the law.

A previously passed version of the bill was rewritten address concerns about how government agencies would pay for attorneys' fees when they lose or settle a Freedom of Information Act lawsuit.

The legislation also creates a system for the media and public to track the status of their FOIA requests. It establishes a hotline service for all federal agencies to deal with problems and an ombudsman to provide an alternative to litigation in disclosure disputes.

The Federal Tort Claims Act (FTCA) waives sovereign immunity only for the acts or omissions of an “employee of the government while acting within the scope of his office or employment. . .” 28 U.S.C. § 1346(b). Because it is a limited waiver of sovereign immunity, the provisions of the Federal Tort Claims Act are strictly construed and must be followed if a valid claim against the government is to be asserted under its provisions.

The provisions of the Act are found in Title 28 of the United States Code. 28 U.S..C § 1346(b); 1402(b); 2401(b); and 2671-2680. If someone is injured by the acts of a government employee, suit may not be brought against the agency or the employee but only against the United States as the named defendant. See 28 U.S.C. § 1346(b). With regard to venue, suit may be brought in the judicial district where the plaintiff resides or where the act or omission occurred. There is no right to a jury trial as all such cases are decided by United Stated District Court Judges. If a claimant is injured by the acts of a government employee. such as a postal truck driver, the liability of the United States is the same as a private individual under like circumstances but in no event shall the government be liable for interest prior to judgment or punitive damages. See Molzof v. United States, 502 U.S. 301 (1992).

We have written before about some of the unique issues associated with these claims. One of the biggest problems is the failure to timely submit written administrative claim as is required by the act. Such an ante litem notice or administrative claim must be filed within two years of the date of the accident or occurrence. A proper notice, to be sufficient under the act, must be in writing and contain sufficient information for the agency to investigate the claim. A sum certain amount for damages must be specified and the claim must be submitted in writing. A claim is deemed presented when received by the agency, not when mailed by the claimant. Denial of a claim is the day its mailed and not when received by the claimant.

If an administrative claim is denied, suit may not be filed for an amount in excess of the amount claimed administratively except when newly discovered evidence, not reasonably discoverable at the time of presenting the claim to the federal agency or upon allegation and proof of intervening facts, relating to the amount of the claim.

Once a claim is submitted to the proper federal agency, the agency has six months to investigate and adjudicate a claim and suit may not be filed during this period. The denial of a claim must be in writing and sent by registered or certified mail and must be unequivocal in denying the claim. The claimant must be informed of the right to file suit within six months in the appropriate federal district court.

Continue reading "Suing Uncle Sam Under the Federal Tort Claims Act" »

We have previously written about procedural problems that clients may face when dealing with claims against governmental entities. Specifically, if an individual has a claim against a city or county government, there are certain pre-suit, ante litem requirements that must be observed before suit can be filed. We have written about this in earlier articles and would refer the reader to the same. We have also written these procedural problems under Georgia’s State Tort Claims Act. Here, we write briefly to discuss some unique issues under the Federal Tort Claims Act (FTCA).

As we have indicated previously, the Federal Torts Claims Act also has an ante litem requirement. A form 95 Claim Form (or its equivalent) must be filed with the appropriate federal agency or department within two years of the date of the accident or occurrence. See 28 U.S.C. § 2401(b). It is also important that there be separate claims for each claimant that may have incurred damages as a result of the alleged wrongful conduct or negligent act of a government employee or agency. See 28 C.F.R. § 14.3(b). Also, only the United States of America may be named as a defendant in a lawsuit later filed, not the agency or the employee, and the suit must be brought against the United States within six month of the claim denial. See 28 U.S.C. § 2401(b).

Another unique provision of the Federal Tort Claims Act is that the courts in such matters apply the Federal Rules of Civil Procedure to procedural law but state substantive law to the alleged negligent act. For example, in a hypothetical medical malpractice case, if a doctor at the Veterans Administration Hospital, for example, allegedly commits malpractice in one jurisdiction, even though the plaintiff may reside in another jurisdiction and therefore have the right to file the claim where they reside under 28 U.S.C. § 1402(b), nonetheless, the malpractice claim will still be governed under the law of the place where the tort occurred. For example, here in Georgia, there is a requirement that an Affidavit be attached to any claim for medical malpractice in which a reviewing physician certifies that one or more negligent acts occurred which constitutes the alleged deviation from acceptable standards of medical care and skill. If such an Affidavit is not attached to a medical malpractice complaint, the complaint can be dismissed under Georgia law. Similarly, even though Federal Civil Procedure governs the rules of procedure for claims brought under the Federal Torts Claims Act, nonetheless, the careful practitioner must always look to state substantive law and make sure that state substantive law is followed in claims filed under the FTCA.

Our purpose in writing on this subject is simply to caution those who might seek to represent themselves with claims against either federal, state governments or local governments that they should be very careful in doing so due to the procedural requirements inherent in such claims. We would strongly urge any person with a claim against the government to confer with counsel before attempting to proceed on their own. Failure to do so could result in an unfavorable result.

We have handled many federal tort claims on behalf of clients over the years but, nonetheless, it is always helpful to have an Abbreviated Federal Tort Claims Act Checklist to make sure that we are in compliance with the law. Those who have never handled a case against the United States government may find some of the procedural requirements burdensome and difficult to navigate. Nonetheless, once a checklist is developed, the procedure is actually fairly easy to follow but and this is an important but, it must be followed correctly. Here are some of the items on our list:

1) The Federal Torts Claims Act is found at 28 U.S.C.§ 1346(b) and 2671 through 2680. As all practitioners know, a detailed Ante Litem Notice must be filed with the federal agency within two years of the date of the accident or occurrence. See 28 U.S.C. § 2401(b). An Ante Litem Notice is typically filed via a standard Form 95 which is found at 28 C.F.R. part 14. While each agency has their own standard Form 95, the Department of Justice standard Form 95 is that which is most easy to use and which provides all the of the requirements of a satisfactory Ante Litem Notice.

2) Typically, when one submits the Notice of Claim Form 95 to the appropriate federal agency, the basis of the claim is stated (which is the date the incident occurred, the description of the claimed negligent act, the type of injury suffered and the parties involved). One must describe in detail the nature and extent of the damages and the amount being claimed. It is important that you claim all the monetary damages you seek on this form because the law provides that if the case is not resolved via an administrative review that you cannot sue for more than you claim in your form.

3) Another important feature of Federal Tort Claims Act cases is that a separate form must be filled out for each damaged claimant. For example, if a husband and wife are injured one cannot file a single for both but must file separate forms. If there are derivative claims such as an estate’s claim when a wrongful death is involved or a loss of consortium claim the practitioner or claimant should file separate claim forms because the Federal Tort Claims Act applies to each separate claim. See 28 C.F.R. § 14.3(b).

4) Once a claim is filed with the appropriate federal agency, the claimant must wait for six months or denial whichever is earlier before suit can be filed. See 28 U.S.C. § 2675(a). If the claim is denied or six months expires without any action by the federal agency, suit must be filed where the plaintiff resides or where the act or omission complained of occurred. See 28 U.S.C. § 1402(b). Once suit is filed, only the United States of America may be named as a defendant, not the agency and not the negligent employee.

Continue reading "An Abbreviated Checklist For The Federal Tort Claims Act" »