Military ClaimsMilitary Claims

FTCA, MCA, and other FTCA, MCA, and other applicable law and applicable law and

legal doctrinelegal doctrine

OverviewOverview

Federal Tort Claims ActFederal Tort Claims Act Military Claims ActMilitary Claims Act General ClaimsGeneral Claims

• Personnel “P” ClaimsPersonnel “P” Claims• Carrier Recovery “CR” ClaimsCarrier Recovery “CR” Claims• Pro-Government Property Damage Tort Pro-Government Property Damage Tort

Claims “G” ClaimsClaims “G” Claims• Hospital Recovery “HR” ClaimsHospital Recovery “HR” Claims

ReferencesReferences Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2401(b), 2402, 2671, 2672, Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2401(b), 2402, 2671, 2672,

2674, 2675, 2676, 2677, 2678, 2679, 26802674, 2675, 2676, 2677, 2678, 2679, 2680 28 C.F.R. Pt 14, Administrative Claims Under FTCA, 1 Jul 0228 C.F.R. Pt 14, Administrative Claims Under FTCA, 1 Jul 02 32 C.F.R. Part 842, Administrative Claims, Subpt K, Claims Under the FTCA, 1 Jul 0232 C.F.R. Part 842, Administrative Claims, Subpt K, Claims Under the FTCA, 1 Jul 02 10 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 0232 C.F.R. Pt 842, Administrative Claims, Subpt F, Military Claims Act (MCA), 1 Jul 02 DOD Directive 5515.3, Settlement of Claims Under 10 U.S.C. §§ 2733 and 2734, as DOD Directive 5515.3, Settlement of Claims Under 10 U.S.C. §§ 2733 and 2734, as

amended, 18 Aug 65 (established single service claims responsibility)amended, 18 Aug 65 (established single service claims responsibility) DOD Directive § 5515.8, Single Service Assignment of Responsibility for Processing of DOD Directive § 5515.8, Single Service Assignment of Responsibility for Processing of

Claims, 9 Jun 90Claims, 9 Jun 90 AFI 51-501, Tort Claims, 9 Aug 02 AFI 51-501, Tort Claims, 9 Aug 02 AFI 51-502, Personnel and Government Recovery Claims, 1 Mar 97 AFI 51-502, Personnel and Government Recovery Claims, 1 Mar 97 JACC Claims Handbook, 30 Sep 97JACC Claims Handbook, 30 Sep 97 The Military Personnel and Civilian Employees’ Claim Act (MPCECA), 31 U.S.C. The Military Personnel and Civilian Employees’ Claim Act (MPCECA), 31 U.S.C.

§§3701, 3721 §§3701, 3721

Fact PatternFact Pattern An active duty Chaplain, Capt Abe, received his PCS orders last fall, ordering him to 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 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 PCS, he closed on a house in San Antonio. Unfortunately, three weeks later, his orders were amended, PCS’g him to Grand Forks AFB, ND, vice TX. He hired a realtor and put were amended, PCS’g 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. the house on the market, but has received no offers to buy or rent the home.

Capt Abe’s father, recently retired CMSgt Bob, was already bored with retirement. Capt Abe’s 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 Having never been to Grand Forks before, he agreed to help his son with his PCS by driving one of Capt Abe’s two cars to ND during his PCS. A week before they left driving one of Capt Abe’s two cars to ND during his PCS. A week before they left MacDill, the packers came to Capt Abe’s house. While they were packing his late MacDill, the packers came to Capt Abe’s house. While they were packing his late grandmother’s china (his through an inheritance), Capt Abe saw a packer drop a plate. grandmother’s 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 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. 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 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 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 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 abandoned by A1C Charlie in their lane, the three cars behind them were not so cautious or lucky. As a result, both of Capt Abe’s cars were rear-ended. Capt Abe cautious or lucky. As a result, both of Capt Abe’s cars were rear-ended. Capt Abe suffered minor injuries requiring stitches from a local clinic. He was released the 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 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. concussion and a broken arm, he was required to remain in a hospital for a few nights. Capt Abe’s car was damaged, but usable and he continued on to GF where he signed Capt Abe’s 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 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.was a total loss. Both parties and cars were insured by USAA.

One month later, Capt Abe’s HHG were delivered to his on-base residence. When the One month later, Capt Abe’s 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 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 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 table. He documented it on the appropriate forms. Capt Abe had not yet gotten around to arranging for renter’s insurance when, that night, a small fire started in his around to arranging for renter’s insurance when, that night, a small fire started in his kitchen (due to a wiring problem), damaging his toaster, microwave and kitchen table. 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 CMSgt Bob burned his hand putting the fire out and was treated at ALTRU for a second degree burn and released that same night.second degree burn and released that same night.

FTCAFTCA

Purpose and basic concepts of the Purpose and basic concepts of the FTCAFTCA

Requirements for FTCA claims and Requirements for FTCA claims and some exceptions or defenses to FTCA some exceptions or defenses to FTCA liability.liability.

Proper and improper claimants.Proper and improper claimants. FTCA claims processing procedures.FTCA claims processing procedures. Representation and immunity of Representation and immunity of

individual Federal employees.individual Federal employees.

FTCA BasicsFTCA Basics A limited waiver of sovereign immunity for claims A limited waiver of sovereign immunity for claims

against the USG for property damage, personal against the USG for property damage, personal injury or death caused by the negligent or injury or death caused by the negligent or wrongful act or omission of government wrongful act or omission of government personnel while acting within the scope of personnel while acting within the scope of employment employment • United States is liable only as a private person would be United States is liable only as a private person would be

liable under the law where the act/omission occurred liable under the law where the act/omission occurred • Must present claim for a sum certain before right to sue Must present claim for a sum certain before right to sue

arises; trial is by judge alonearises; trial is by judge alone• No strict or absolute liability and no punitive damages No strict or absolute liability and no punitive damages • Only applies to acts/omissions that occur within US Only applies to acts/omissions that occur within US

territory territory

FTCA ElementsFTCA Elements

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

““An employee of the government”…An employee of the government”…the “control” testthe “control” test

A person is not an employee of the government A person is not an employee of the government for FTCA purposes unless the government for FTCA purposes unless the government controls and supervises the day-to-day activities controls and supervises the day-to-day activities of the individual . Liability generally turns on the of the individual . Liability generally turns on the degree and quality of control or direction the degree and quality of control or direction the USAF exercised over the contractor USAF exercised over the contractor • Excludes most independent contractors (e.g. MTF Excludes most independent contractors (e.g. MTF

Contract physicians)Contract physicians)• May include: persons acting on behalf of a federal May include: persons acting on behalf of a federal

agency in an official capacity; persons temporarily or agency in an official capacity; persons temporarily or permanently in the service of the United States, whether permanently in the service of the United States, whether with or without compensation; Civil Air Patrol (CAP), if with or without compensation; Civil Air Patrol (CAP), if performing an AF-assigned mission; and National Guard performing an AF-assigned mission; and National Guard while engaged in training or duty” under 32 U.S.C.while engaged in training or duty” under 32 U.S.C.

Scope of employmentScope of employment

According to law of According to law of the statethe state where act or where act or omission occurred omission occurred

JA legal determination; will consider:JA legal determination; will consider:• Time, purpose, place of activity Time, 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 Expansion of concept: Lawn mowers, dog bites…bites…

Conflict of LawsConflict of Laws

Federal procedural/state substantive law Federal procedural/state substantive law appliesapplies• Federal law – e.g. the statute of limitations, Federal law – e.g. the statute of limitations,

exceptions to liability…exceptions to liability…• State law – e.g. existence of a cause of action, State law – e.g. existence of a cause of action,

proper party to bring claim, amount of proper party to bring claim, amount of damages/recognized elements of damages.damages/recognized elements of damages.

Defenses (e.g., contributory or Defenses (e.g., contributory or comparative negligence) apply.comparative negligence) apply.

State tort recovery maximums (but not State tort recovery maximums (but not compulsory mediation panels) apply. compulsory mediation panels) apply.

Exceptions/DefensesExceptions/Defenses The Discretionary Function exceptionThe Discretionary Function exception Admiralty Claims exceptionAdmiralty Claims exception Intentional Torts exception, Intentional Torts exception, BUT… the FTCA does not bar

claims arising from:• Misconduct of a federal Misconduct of a federal investigative or law enforcement

officer acting within the scope of employment; or 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 Combatant Activities of the Armed Forces "During Time of

War" exceptionWar" exception Government "Taking" of Air Space Over Land exception Government "Taking" of Air Space Over Land exception Damage Incurred "incident to service" defenseDamage Incurred "incident to service" defense Damage Incurred "in performance of duty" by a civilian Damage Incurred "in performance of duty" by a civilian

employee of the U.S. defenseemployee of the U.S. defense Theory of the Unitary ExecutiveTheory of the Unitary Executive

The The FeresFeres Doctrine Doctrine Feres v. United StatesFeres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 , 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152

(1950) – a trilogy of cases that barred claims by AD members (1950) – a trilogy of cases that barred claims by AD members against the US for property damage, personal injury and/or death against the US for property damage, personal injury and/or death incurred while on ADincurred while on AD

Focus on status of the Focus on status of the injured partyinjured party at time of injury, not the at time of injury, not the tortfeasortortfeasor• AD includes reserve on AD or IDTs; NG on Title 10 or 32 orders, ROTC AD includes reserve on AD or IDTs; NG on Title 10 or 32 orders, ROTC

cadets in training, USAFA cadets; NOT retirees or dependentscadets 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 determinationsContrast 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 Permitting lawsuits would have a “chilling effect” on discipline/military

order;order;• The extreme results that might obtain if such suits were permitted; and The extreme results that might obtain if such suits were permitted; and • Other types of compensation (e.g., disability or survivors’ benefits) are Other types of compensation (e.g., disability or survivors’ benefits) are

available.available.

FeresFeres examples examples Bars claims:Bars claims:

• alleging an AD member killed by US’s negligence in housing alleging an AD member killed by US’s negligence in housing him in barracks known or which should have been known to be him in barracks known or which should have been known to be unsafe because of defective heating (unsafe because of defective heating (FeresFeres););

• where large sponge left in active duty member following where large sponge left in active duty member following abdominal surgery (abdominal surgery (JeffersonJefferson consolidated with consolidated with FeresFeres););

• by a widow for medical malpractice causing AD husband’s by a widow for medical malpractice causing AD husband’s death (death (GriggsGriggs, consolidated with Feres);, consolidated with Feres);

• for injuries inflicted by the Army on soldiers allegedly for injuries inflicted by the Army on soldiers allegedly administered LSD without their knowledge or consent administered LSD without their knowledge or consent ((United United States v. StanleyStates v. Stanley, 483 U.S. 669 (1987)), 483 U.S. 669 (1987))

• for loss of consortium when AD spouse disabled by alleged US for loss of consortium when AD spouse disabled by alleged US negligence negligence ((Harrison v. United StatesHarrison v. United States, 479 F. Supp. 529 (D. Conn. , 479 F. Supp. 529 (D. Conn. 1979), 1979), aff'daff'd, 622 F.2d 573 (2d Cir. 1980));, 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 by dependents or retirees for injuries to their own

persons/propertypersons/property• by military members for injury to family membersby military members for injury to family members

FTCA Filing RequirementsFTCA Filing Requirements Statute of Limitations – Claimant must present the claim to the Statute of Limitations – Claimant must present the claim to the

appropriate federal agency within two (2) years after claimant appropriate federal agency within two (2) years after claimant discovers or reasonably should have discovered discovers or reasonably should have discovered the act or omission which caused the injury/damage. which caused the injury/damage.

Written demand signed by claimant or one who is authorized to Written demand signed by claimant or one who is authorized to act on behalf of claimant and provides evidence of authorizationact on behalf of claimant and provides evidence of authorization

Demand for money damages in a sum certainDemand for money damages in a sum certain Must include proper documentation Must include proper documentation Presented to an appropriate federal agency; agency has six Presented to an appropriate federal agency; agency has six

months to consider claim, after which claimant may deem inaction months to consider claim, after which claimant may deem inaction to be denial and exercise option to file suitto be denial and exercise option to file suit• Must then request reconsideration of denied claim or file suit w/in 6 Must then request reconsideration of denied claim or file suit w/in 6

mths of claim denialmths of claim denial• File suit in an appropriate United States District Court File suit in an appropriate United States District Court • Suit may not include allegations of which the government was not Suit may not include allegations of which the government was not

fairly put on notice by the administrative claim or increase alleged fairly put on notice by the administrative claim or increase alleged damage amount absent special circumstancesdamage amount absent special circumstances

FTCA Settlement AuthoritiesFTCA Settlement Authorities Certain claims may only be “settled” (paid or denied) by Certain claims may only be “settled” (paid or denied) by

AFLSA/JACT or higher settlement authoritiesAFLSA/JACT or higher settlement authorities• Medical malpractice (SJA may settle claims within settlement authority Medical malpractice (SJA may settle claims within settlement authority

w/approval from JACT)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) claims Civil 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 Claims above base settlement authority must be sent to the next higher settlement authority no later than 120 days after receipt. 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, If claim is disapproved and no settlement agreement is signed,

suit may be filedsuit may be filed

Individual RepresentationIndividual Representation ““Upon certification by the Attorney General that the Upon certification by the Attorney General that the

defendant employee was acting within the scope of his defendant employee was acting within the scope of his office or employment at the time of the incident out of office or employment at the time of the incident out of which the claim arose . . . the United States shall be which the claim arose . . . the United States shall be substituted as the party defendant." substituted as the party defendant."

Congressional intent: Congressional intent: • remove the potential personal liability of Federal employees remove the potential personal liability of Federal employees

for common law torts committed within the scope of their for common law torts committed within the scope of their employmentemployment

• provide an exclusive remedy for such torts through an action provide an exclusive remedy for such torts through an action against the United States under the FTCAagainst the United States under the FTCA

Past or present Air Force military or civilian personnel who Past or present Air Force military or civilian personnel who are named as individual defendants for personal liability in are named as individual defendants for personal liability in civil or criminal proceedings for acts or omissions arising civil or criminal proceedings for acts or omissions arising from the performance of their official Air Force duties may from the performance of their official Air Force duties may request representation by DOJrequest representation by DOJ

ImmunityImmunity US is entitled to assert any defense US is entitled to assert any defense based upon

judicial or legislative immunity which otherwise which otherwise would have been available to the US employee would have been available to the US employee whose act or omission gave rise to the claim, as whose act or omission gave rise to the claim, as well as any other defenses to which the United well as any other defenses to which the United States is entitled.States is entitled.

Persons with statutory immunity:Persons with statutory immunity:• Medical personnel ‑ 10 U.S.C. § 1089 ("Medical Medical personnel ‑ 10 U.S.C. § 1089 ("Medical

Malpractice Immunity Act").Malpractice Immunity Act").• Legal personnel ‑ 10 U.S.C. § 1054 ("Legal Malpractice Legal personnel ‑ 10 U.S.C. § 1054 ("Legal Malpractice

Immunity Act").Immunity Act").• Any employee of the government whose act or omission Any employee of the government whose act or omission

gave rise to the FTCA claim that was the subject of an gave rise to the FTCA claim that was the subject of an earlier judgment. See 28 U.S.C. § 2676 earlier judgment. See 28 U.S.C. § 2676

Military Claims Act (MCA)Military Claims Act (MCA)

PurposePurpose Payable & Nonpayable ClaimsPayable & Nonpayable Claims Proper ClaimantsProper Claimants Filing ProceduresFiling Procedures Settlement AuthoritiesSettlement Authorities FTCA or MCA?FTCA or MCA?

MCA PurposeMCA Purpose To pay for property damage, personal injury or To pay for property damage, personal injury or

death caused by military or civilian employees of death caused by military or civilian employees of the armed forces, acting within the scope of the armed forces, acting within the scope of employment, or otherwise incident to the employment, or otherwise incident to the noncombat activities of the armed forces. noncombat activities of the armed forces.

The MCA is purely an “act of grace” to file an The MCA is purely an “act of grace” to file an administrative claim - it generally confers no right administrative claim - it generally confers no right to sue if the claim is denied. 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."

Payable ClaimsPayable Claims Negligent/Wrongful Act/Omission (Tort) ClaimsNegligent/Wrongful Act/Omission (Tort) Claims

• RequiresRequires:: Scope of employment of tort‑feasorScope of employment of tort‑feasor Negligent or wrongful act or omissionNegligent or wrongful act or omission

• AND only applies if Federal Tort Claims Act does AND only applies if Federal Tort Claims Act does notnot apply apply OverseasOverseas Stateside ‑ tort claims of U.S. military members for damage to Stateside ‑ tort claims of U.S. military members for damage to

personal property "incident to service" (usually on‑base)personal property "incident to service" (usually on‑base) Noncombat Activity ClaimsNoncombat Activity Claims

• Requires Requires onlyonly causal connection between authorized activity causal connection between authorized activity and injury/damage (generally no negligence/wrongfulness need and injury/damage (generally no negligence/wrongfulness need be proven)be proven)

• A Noncombat Activity "is particularly military in nature, has A Noncombat Activity "is particularly military in nature, has little parallel in civilian pursuits, and has been historically little parallel in civilian pursuits, and has been historically considered as furnishing the proper basis for payable claims.“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, Operation/crashes of military spacecraft and military aircraft,

including sonic booms and low overflights.including sonic booms and low overflights. Use of military balloons.Use of military balloons.

Examples of Nonpayable ClaimsExamples 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 International Agreement Claims Act to include claims processed IAW Status of

Forces Agreements (SOFA claims)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’ The Federal Employees’ Compensation Act or the Longshore and Harbor Workers’

Compensation Act (workers’ comp for civilian employees)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 (A claim excluded by 28 U.S.C. § 2680 (mostmost FTCA statutory exclusions) 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 Personal injury or death of military personnel or civilian employees "incident to

service“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 The exercise/performance of, or failure to exercise/perform, a discretionary

function or duty function or duty MCA claim is also unpayable if it’s not in the best interest of the MCA claim is also unpayable if it’s not in the best interest of the

government to pay itgovernment to pay it

ClaimantsClaimants Proper ClaimantsProper Claimants

• Citizens and inhabitants of U.S.Citizens and inhabitants of U.S.• U.S. military personnel and civilian employees, but U.S. military personnel and civilian employees, but notnot

for personal injury or death incident to service for personal injury or death incident to service • Persons in a foreign country who are not inhabitants of Persons in a foreign country who are not inhabitants of

anyany foreign country. foreign country.• U.S. states, their political subdivisions, and local U.S. states, their political subdivisions, and local

governments.governments.• Subrogees (insurers) of proper claimants to the extent Subrogees (insurers) of proper claimants to the extent

they have paid the claim.they have paid the claim. Not Proper Claimants (includes subrogees thereof)Not Proper Claimants (includes subrogees thereof)

• Foreign governments, their agencies, and political Foreign governments, their agencies, and political subdivisions.subdivisions.

• US government agencies/departments US government agencies/departments ("interdepartmental waivers") ("interdepartmental waivers")

• Nonappropriated fund instrumentalities.Nonappropriated fund instrumentalities.• Inhabitants of foreign countries.Inhabitants of foreign countries.

Filing MCA ClaimsFiling MCA Claims Within two years from time the claimant Within two years from time the claimant

"discovered or reasonably should have discovered "discovered or reasonably should have discovered the existence of the act that resulted in the the existence of the act that resulted in the claimed loss."claimed loss."

In writing for a sum certainIn writing for a sum certain Extent of liability and measurement of damagesExtent of liability and measurement of damages

• In United States - law of the place where the act or In United States - law of the place where the act or omission occurredomission occurred

• In foreign countriesIn foreign countries General principles of American tort lawGeneral principles of American tort law Standard legal publicationsStandard legal publications State law/FTCA casesState law/FTCA cases Contributory or comparative negligence applied according Contributory or comparative negligence applied according

to foreign host nation lawto foreign host nation law• Strict or absolute liability never imposedStrict or absolute liability never imposed• Punitive damages are not payablePunitive damages are not payable

Settlement AuthoritiesSettlement Authorities NOTE: Authority to NOTE: Authority to PAYPAY depends upon amount can get claimant to depends upon amount can get claimant to

accept; authority to accept; authority to DENYDENY depends upon amount claimed. depends upon amount claimed.

Secretary of the Air Force: pay or deny a claim for any amountSecretary of the Air Force: pay or deny a claim for any amount The Judge Advocate GeneralThe 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 AFLSA/JACE (Chief and Environmental Litigation and Torts Branch Chief) - for

environmental torts onlyenvironmental torts only• SJAs of each Air Force base may pay $25,000 or less/deny claims filed for $25,000 SJAs of each Air Force base may pay $25,000 or less/deny claims filed for $25,000

or lessor less Settlement by AFLSA/JACT onlySettlement by AFLSA/JACT only

• Medical malpractice (an SJA may settle claims within settlement authority w/JACT Medical malpractice (an SJA may settle claims within settlement authority w/JACT approvalapproval

• 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) claims Civil Air Patrol (CAP) claims

AppealsAppeals Must be in writing, within 60 days.Must be in writing, within 60 days. Can sue under Federal Tort Claims Act Can sue under Federal Tort Claims Act

(noncombat activity claims or situations (noncombat activity claims or situations where there is an issue of whether the where there is an issue of whether the claimant was incident to service), BUTclaimant was incident to service), BUT• Would have to prove tort liability (primarily Would have to prove tort liability (primarily

negligence).negligence).• Must file within 6 months of date US mails the Must file within 6 months of date US mails the

denial letter denial letter Generally, no judicial review of agency Generally, no judicial review of agency

determinations pursuant to Administrative determinations pursuant to Administrative Procedures Act.Procedures Act.

FTCA or MCA? FTCA or MCA? Some Practical ConsiderationsSome Practical Considerations

If a claim involves a noncombat activity If a claim involves a noncombat activity (e.g., sonic booms, aircraft crashes), (e.g., sonic booms, aircraft crashes), process the claim under the MCA.process the claim under the MCA.• Doesn't require claimant to prove negligence Doesn't require claimant to prove negligence

or us to have to find it to pay claim.or us to have to find it to pay claim.• The claimant can still sue under FTCA, but will The claimant can still sue under FTCA, but will

have to show tort liability.have to show tort liability. AF can make an advance payment up to AF can make an advance payment up to

$100,000 under MCA but $100,000 under MCA but notnot under FTCA. under FTCA.• Can be a real help after a major disaster, such Can be a real help after a major disaster, such

as an airplane crash.as an airplane crash.

General ClaimsGeneral Claims

Personnel “P” ClaimsPersonnel “P” Claims• The Military Personnel and Civilian Employees’ The Military Personnel and Civilian Employees’

Claim Act (MPCECA), 31 U.S.C. §§3701, 3721 Claim Act (MPCECA), 31 U.S.C. §§3701, 3721 Carrier Recovery “CR” ClaimsCarrier Recovery “CR” Claims Pro-Government Property Damage Tort Pro-Government Property Damage Tort

Claims “G” ClaimsClaims “G” Claims Hospital Recovery “HR” ClaimsHospital Recovery “HR” Claims

• Federal Medical Care Recovery Act, 42 U.S.C. Federal Medical Care Recovery Act, 42 U.S.C. §§ 2651-2653; and§§ 2651-2653; and

• The Coordination of Benefits Act, 10 U.S.C. § The Coordination of Benefits Act, 10 U.S.C. § 1095. 1095.

““P” Claims OverviewP” Claims Overview The Military Personnel and Civilian The Military Personnel and Civilian

Employees’ Claims ActEmployees’ Claims Act is the claims process is the claims process that governs loss of, or damage to, personal that governs loss of, or damage to, personal property “incident to service.”property “incident to service.”• a a gratuitousgratuitous payment statute designed to lessen the payment statute designed to lessen the

hardships of military life by providing prompt payment hardships of military life by providing prompt payment for certain types of property loss or damagefor certain types of property loss or damage

• most commonly “personnel transportation” claims most commonly “personnel transportation” claims arising from loss of, or damage to, household goods arising from loss of, or damage to, household goods during a permanent change of station (PCS). during a permanent change of station (PCS).

• paid with money appropriated by Congresspaid with money appropriated by Congress• notnot subject to judicial review subject to judicial review

““P” Claims RequirementsP” Claims Requirements Includes only tangible personal property and certain associated Includes only tangible personal property and certain associated

expenses 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 serviceIncident to service

• Government-Sponsored Transportation & StorageGovernment-Sponsored Transportation & Storage (e.g. PCS) (e.g. PCS)• Travel (items lost or damaged during actual Travel (items lost or damaged during actual transportationtransportation by the by the

claimant)claimant)• Quarters and Other Authorized Places Quarters and Other Authorized Places

In the United States,In the United States, “quarters” include only USG owned or leased housing “quarters” include only USG owned or leased housing whether on or off-base; whether on or off-base;

Overseas,Overseas, “quarters” include both on-base and off-base residences “quarters” include both on-base and off-base residences • Extraordinary Hazards at quarters and other authorized places (e.g. Extraordinary Hazards at quarters and other authorized places (e.g.

fires, floods, theft, vandalism, etc.)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 Clothing and Other Items (if caused by fire, flood, hurricane, other

unusual occurrence, theft or vandalism)unusual occurrence, theft or vandalism)• Property Held as EvidenceProperty Held as Evidence• Enemy Action, Hostile Acts, Confiscation, Evacuation, or Public Service Enemy Action, Hostile Acts, Confiscation, Evacuation, or Public Service

(e.g. unjust confiscation of property belonging to AF members or (e.g. unjust confiscation of property belonging to AF members or employees by a foreign government or its nationals) employees by a foreign government or its nationals)

Payable P ClaimsPayable P Claims Payable - Repair or replacement of tangible personal Payable - Repair or replacement of tangible personal

property and fees for replacing certain documents having a property and fees for replacing certain documents having a raised seal raised seal

Some examples of nonpayable claimsSome 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 Incidental expenses and consequential damages, e.g. claims

for losses on the sale of a house due to cancelled PCS orders for losses on the sale of a house due to cancelled PCS orders • Inconvenience expenses (e.g. rental car costs incurred Inconvenience expenses (e.g. rental car costs incurred

because a claimant’s vehicle was not delivered in a timely because a claimant’s vehicle was not delivered in a timely manner) manner)

• Hit and run damage to a POV Hit and run damage to a POV • Losses payable by insuranceLosses payable by insurance..

Claimants with insurance coverage must file claims with their Claimants with insurance coverage must file claims with their insurers before claims personnel will process most claimsinsurers before claims personnel will process most claims

However, for PT claims there is no requirement to file with insurers However, for PT claims there is no requirement to file with insurers first first for PT claimsfor PT claims unlessunless the loss was catastrophic the loss was catastrophic oror the loss was the loss was caused by an event that may relieve the contractor of liabilitycaused by an event that may relieve the contractor of liability

P Claim PaymentsP 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 Up to $100 prior to claimant incurring the expense, more after claimant provides proof of actual payment of the expense (i.e. receipts).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 Insurance Private Insurance

The maximum allowable payment for settlement of a single claim is The maximum allowable payment for settlement of a single claim is currently $40,000, with two exceptions:currently $40,000, with two exceptions:• Up to $100,000 for claims arising from an emergency evacuation orUp to $100,000 for claims arising from an emergency evacuation or from from

extraordinary circumstances extraordinary circumstances • Up to $100,000 for the loss of household effects sustained during a change of 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 force 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 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 JACCwas actively involved in the initial decision - then the request goes to JACC

““CR” ClaimsCR” Claims CR claims are pro-government claims that the CR claims are pro-government claims that the

base claims office asserts against carriers, base claims office asserts against carriers, shippers, moving companies, and warehousemen shippers, moving companies, and warehousemen for reimbursement of monies paid to claimantsfor reimbursement of monies paid to claimants for the loss or damage to their house-hold for the loss or damage to their house-hold goods/POV during a PCS goods/POV during a PCS

US settles with claimant. Then claims against US settles with claimant. Then claims against carrier. US settles with the carrier. Any excess is carrier. US settles with the carrier. Any excess is returned to claimant.returned to claimant.

Subrogation claims based on the law of Subrogation claims based on the law of bailments; bailments;

Elements to Proving a CR claimElements to Proving a CR claim

The three elements of a The three elements of a prima facie prima facie case case against a carrier that the US must prove against a carrier that the US must prove through facts and documentation, are:through facts and documentation, are:• The goods were tendered to a carrier in a The goods were tendered to a carrier in a

certain condition;certain condition;• The property was not delivered by the carrier The property was not delivered by the carrier

or was delivered by the carrier in a more or was delivered by the carrier in a more damaged condition; anddamaged condition; and

• The amount of loss or damageThe amount of loss or damage US has six years to assert claimUS has six years to assert claim

““G” ClaimsG” Claims G-Claims are pro-government claims asserted under the Federal G-Claims are pro-government claims asserted under the Federal

Claims Collection Act by the US against anyone for damage to US Claims Collection Act by the US against anyone for damage to US property caused by a negligent or wrongful actproperty caused by a negligent or wrongful act..

Proper claimsProper claims• Property damage or loss caused by negligence and the claim is for Property damage or loss caused by negligence and the claim is for

$100 or more$100 or more• Damage for less than $100 Damage for less than $100 if it can be collected easily.if it can be collected easily.• Based on contract and the contracting officer does not intend to assert Based on contract and the contracting officer does not intend to assert

a claim under the contracta 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 Tortfeasor (or his insurer) presents a claim against the Government

arising from the same incident - process both togetherarising 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 NOT reimbursement from military members or civilian employees (while acting during the course and scope of their employment) (while acting during the course and scope of their employment) for claims paid by the government because of their negligence for claims paid by the government because of their negligence

Processing “G” ClaimsProcessing “G” Claims JA investigates potential “G” claimsJA investigates potential “G” claims

• Gathers reports of survey, investigatory reports, witness Gathers reports of survey, investigatory reports, witness statements, etc.statements, etc.

• Obtains complete, accurate repair or replacement Obtains complete, accurate repair or replacement estimates from government officialsestimates 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 Staff Judge Advocate asserts claim via certified mailmail

Three-year tort Statute of Limitations from date Three-year tort Statute of Limitations from date cause of action accrues (i.e. property was cause of action accrues (i.e. property was damaged)damaged)

Authority to compromiseAuthority to compromise• $25,000--Staff Judge Advocate$25,000--Staff Judge Advocate• Over $25,000--coordinate with JACC Over $25,000--coordinate with JACC

HR ClaimsHR Claims Pro-government claims that the AF asserts to Pro-government claims that the AF asserts to

recover money for the cost of treating people at recover money for the cost of treating people at military hospitals and clinicsmilitary hospitals and clinics

Tort-based liability via the Federal Medical Care Tort-based liability via the Federal Medical Care Recovery Act (FMCRA), 42 U.S.C. §§ 2651-2653Recovery Act (FMCRA), 42 U.S.C. §§ 2651-2653• Usually duty, breach, causation, damages must be Usually duty, breach, causation, damages must be

present before asserting an HR claim under the FMCRApresent before asserting an HR claim under the FMCRA• The FMCRA applies even in no-fault jurisdictions. There The FMCRA applies even in no-fault jurisdictions. There

the US may pursue an FMCRA claim as a third party the US may pursue an FMCRA claim as a third party beneficiary.beneficiary.

Contract/insurance based liability via the Contract/insurance based liability via the Coordination of Benefits Act (COB), 10 U.S.C. § Coordination of Benefits Act (COB), 10 U.S.C. § 10951095• COB statute makes the US a third-party beneficiary under COB statute makes the US a third-party beneficiary under

health insurance policies/plans, auto insurance providing health insurance policies/plans, auto insurance providing for medical treatment, workers’ compensation coverage, for medical treatment, workers’ compensation coverage, and similar plans, policies, and programsand similar plans, policies, and programs

• Helps in no-fault statesHelps in no-fault states

HR Claims ProcessingHR Claims Processing JA investigates and assesses liabilityJA investigates and assesses liability Asserts FMCRA claims against the tortfeasor, Asserts FMCRA claims against the tortfeasor,

insurer, injured party, injured party’s attorneyinsurer, injured party, injured party’s attorney Asserts COB claims against the insurer, injured Asserts COB claims against the insurer, injured

party, injured party’s insurerparty, injured party’s insurer May not assert claims against any US May not assert claims against any US

department/agency or instrumentality (e.g. department/agency or instrumentality (e.g. Medicare, Medicaid, and the VA) Medicare, Medicaid, and the VA)

May not assert claims against AD personnel, May not assert claims against AD personnel, dependents, or federal employees absent dependents, or federal employees absent insurance or willful misconduct or gross insurance or willful misconduct or gross negligence by the injured party negligence by the injured party

HR Claims SettlementHR Claims Settlement

Representation agreement with Representation agreement with injured party’s attorneyinjured party’s attorney

Intervention or separate lawsuit with Intervention or separate lawsuit with Assistant United States Attorney (and Assistant United States Attorney (and JACC approval)JACC approval)

Waiver/CompromiseWaiver/Compromise• Base level - $25,000Base level - $25,000• JACC - $100,000JACC - $100,000• Department of Justice - over $100,000Department of Justice - over $100,000