Georgia Injury Lawyer Blog

We have been contacted many times concerning tort claims against the U. S. Postal Service. Typically these involve personal injury claims arising out of motor vehicle collisions where a postal truck of some kind is involved. Sometimes it is the mail handler delivering the mail and sometimes it is a large tractor-trailer delivering mail between districts. In either circumstance, where one sustains an injury as a result of the negligent acts of a Postal Service employee, it is necessary that the claimant file a Standard Form 95 with the proper representatives of the Postal Service as a pre-condition to any suit that might later be brought. The reason is because all claims against the Postal Service are governed by the terms and procedures of the Federal Tort Claims Act, which are mandatory and jurisdictional. In short, if one does not comply with the terms of the Federal Torts Claim Act, the claim will be essentially forfeited.

39 C.F.R. part 912 provides that a claim should be submitted pre-suit to the Post Office where the accident occurred an/or to the Postal Service District Office where the accident occurred and also to the Chief Counsel National Tort Center in St. Louis, Missouri. 39 C.F.R. part 912 describes the information that must be included in the claim presentation, which again, must be filed pre-suit. Once the claim is filed with the Postal Service Tort Claims Division, then in that event, six months must elapse before suit can be filed. If the claim is denied and/or not ruled upon within six months, the claimant may file suit in Federal District Court but may only name the United States of America as the defendant.

Anyone who suffers an injury at the hands of a negligent Postal Service employee, whether by way of a motor vehicle accident or otherwise, should confer with counsel who has experience with the Federal Tort Claims Act. Again, there are jurisdictional pre-suit filing requirements that must be followed otherwise the claim can be lost due to a failure to follow the procedures of the Federal Tort Claims Act.

The Federal Torts Claim Act is found at 28 U.S.C. § 1346. It provides for a limited waiver of sovereign immunity with respect to tortious acts committed by federal agents and employees. Under its provisions, only the United States of America may be named as a defendant, not the agency or employee who committed the tort. An administrative ante-litem notice must be filed within two (2) years after the claim accrues. There is a waiting period before suit can be filed against the United States which is either when the written denial occurs or six (6) months, whichever is earlier.

In order to present a claim one must typically submit to the agency involved a Standard Form 95 Claim form which sets forth the basis of the claim and the amount of the damages being claimed. As is true of the State Torts Claim Act relative to claims against State of Georgia agents and officers, the Federal Torts Claim Act provides for a limited waiver of the United States’ sovereign immunity. The provisions of the Act set forth when the government can and cannot be sued. Provisions of the Act as indicated also have various ante-litem notice provisions which must be followed otherwise the claim can be barred for failure to properly perfect the claim.

Continue reading "Suing Uncle Sam: The Federal Torts Claim Act" »

Today we received a telephone call from a client who had been injured on some school property. The client was vaguely aware of the doctrine of sovereign immunity and unfortunately for this particular person their claim was completely barred by operation of law. Why: because of the doctrine of Sovereign Immunity?

The law has long been that lawsuits against government official performing their discretionary and official job functions are discouraged. If it were not otherwise there would be litigation every time someone disagreed with what a government official did or how they performed their job, particularly if they claim to have been damaged by unskillful performance. Over the years more and more barriers have arisen with respect to tort claims against governmental entities. The obvious policy reason behind this doctrine is to protect government officials from being sued when performing their official functions on behalf of the public at large. It’s application can sometimes be harsh, but public policy cannot allow government officials to be sued for allegedly unwise decisions. That would surely open the proverbial floodgates as almost everyone at times questions the wisdom of public officials.

In future blogs we are going to talk briefly about how one can sue their government when they are injured by the negligent acts of a government agent or employee. As an example, if the United States Government is involved, one must be familiar with the Federal Tort Claims Act. If the State of Georgia is involved, one must be familiar with the State Tort Claims Act. If a county or municipality is involved, one must be familiar with the legions of cases that spell out the distinction between protected discretionary acts for which there is official immunity and the difference between cases involving a breach of ministerial duties for which there may be the possibility of a viable claim.

In our future blogs we will talk about exceptions to sovereign immunity and how it is still possible in certain limited contexts to obtain compensation for injuries caused by government officials. While sovereign immunity is still a bar to many otherwise valid claims based on public policy in this area, nonetheless, there are ways to obtain compensation for injuries and damages incurred by innocent victims of governmental negligence. The controlling legal issue for lawyers who seek to serve clients with such claims is to find a legal exception to the doctrine of sovereign immunity, to know when exceptions apply and to know how to survive a Motion to Dismiss based on a legal defense of sovereign immunity. As indicated, we will address this topic in future entries.

Under the unique provisions of the Federal Tort Claims Act (FTCA), there is no right to a jury trial. What this means is obvious: once an FTCA lawsuit is filed and the United States of America is named as the defendant, if the case cannot be resolved thereafter and a trial is required, the trial will be before a United States District Court judge which will sit, not only as the finder of fact, but also as the Judge of the law. In short, the U.S. District Court Judge will conduct a Bench Trial without the assistance of a jury to determine whether the claimant can prove by a preponderance of the evidence that the United States government has committed an actionable tort which has resulted in damages against the claimant. If the claimant proves by a preponderance of the evidence that he or she was injured as a result of the tortious misconduct of a federal employee or agency, then in that event, the court will so rule and then will award appropriate damages caused by the tort.

In considering any claim under the FTCA, obviously, counsel will have to consider whether the U.S. District Court judge to whom the case is assigned is likely to rule favorably on the same. As an example, if the claim involves a medical malpractice claim against the Veterans Administration, the strength or weakness of the claim may convince counsel that a U.S. District Court judge may or may not rule favorably for the claimant. Such considerations obviously are important in considering whether a case should be settled or should be presented to the Trial Court. While the District Court does have the discretion to empanel a jury to render an advisory verdict any decision such a panel might make is not binding and the District Court is required by law to issue a ruling by itself relative to the merits of an FTCA case. Thus, in any case in which a civil claimant sues the United States government for damages caused by a tort committed by a federal agency or employee, counsel should always remember that they will only receive a Bench Trial in such a case and that it is the U.S. District Court that will decide all of the issues in the case.

We have blogged in the past about some of the unique provisions of the Federal Tort Claims Act (FTCA) and how they pertain to tort claims against the United States government. As an example, one unique provision is that no claim can be sued against the federal agency per se but instead only against the United States. In any lawsuit against the federal government in which a tort has occurred, the named defendant must be the United States of America. Thus, in a case where a postal driver runs a stop sign and injures someone or a drunk federal agent while on the job causes a collision with serious injuries, the lawsuit must be filed against the United States government. Of course, there are other unique provisions of the Federal Tort Claims Act which require pre-suit notification of a claim but nonetheless, if settlement negotiations are unsuccessful, the claim must be filed against the United States of America in United States District Court.

In terms of where a case should be sued, this is another unique provision of the Federal Tort Claims Act. The claim can be filed either where the tort occurred or where the plaintiff resides. For example, if a tort occurs in one state and the plaintiff moves and wishes to file the lawsuit against the United States of America in the district where they then reside, they can do so. The issue is which jurisdiction might be more favorable for the claim. Some jurisdictions are more conservative than others and some jurisdictions might be more favorable with respect to claims against the federal government based on the demographics of the federal bench in the area where the claim can be filed. Thus, in any of these cases, counsel for the victim of a federal tort claim should consider not only the proper venue but must make sure that all pre-suit filing requirements are met and, when suit is filed, that it is filed solely against the United States of America.