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Federal Tort Claims Act (Continued from page 36)


your state recognizes it.7 The Mechanics of Filing a Claim


To file a claim, you must file sufficient, written notice of the event to allow the United States to investigate the matter. The written claim should be filed with the appropriate agency of the United States and demand a sum certain.8


The


appropriate agency is the one that employs the person who caused the tort. Each agency has a separate claims office and you can call the agency and ask for the proper address and point of contact to file the claim. I strongly urge you to make the allegations broad. You can narrow your criticisms later, but if you start out nar- row, you may be limited to those accusations once limitations runs or you decide to file suit. The claim must also demand a sum certain and be dated and signed by the claimant or by someone with the authority to sign for the claim- ant. If the claim is signed by someone


7 Otto v. NIH, 815 F.2d 985 (4th Cir. 1987);


Sanders v. U.S. Department of Army Surgeon General, 551 F.2d 458 (D.C. Cir. 1977). 8 28 U.S.C. §2401 and 2675b.


other than the claimant, you must file the appropriate documents with the claim. There have been cases where the court did not allow affidavits to be filed at trial to cure the failure to produce a power of at- torney with the administrative claim.9 Most courts that have considered this is- sue, however, have allowed an affidavit to be filed later and have not made the fail- ure to present the authority to sign for the claimant a jurisdictional requirement necessitating dismissal of the suit. Because state law controls, whatever authority you submit should be in accordance with your state law.


As a practical matter, the United States has a standard form 95 (SF95) which you may use, but use of the form is not man- datory. You can access the form online at www.usdoj.gov/civil/forms/sf95. Any documents or letters you file prior to the statute of limitations running are to be read together with the original claim, so if you forget an essential element of the claim and need to supplement your claim, you may do so. Just be sure that all essen- tial elements are filed with the United States before limitations runs. Although the claim should be filed with the agency whose member committed the


9


Triplett v. United States, 501 F. Supp. 118 (D. Nev. 1980).


tort,10


in some instances, it may not be


possible to figure out which agency is re- sponsible. In those cases, make a decision about which agency you think is respon- sible and file it there.


This should toll


limitations even if you have filed it with the incorrect agency, although some agen- cies have a regulation that seems to contradict this. The Army Regulation 27- 20, Claims, for instance, has a provision that reads “Receipt of a claim by another Federal agency does not toll the SOL. Receipt of a U.S. Army claim by DOD [Department of Defense], Navy, or Air Force does toll the SOL. There are regu- lations that require the agency to transfer any claim filed in the wrong place to the proper agency.11


You may also file with


multiple agencies and if you do so, you should send copies of all claims filed to both agencies and tell them which agency you believe is the lead or most respon- sible agency.12 If you are in a jurisdiction that requires a personal representative to file a wrong- ful death claim, make sure someone is appointed as the personal representative before you file the claim. If it is later dis- covered that someone filed a wrongful death claim who had not been appointed as the personal representative and limita- tions have run, your claim could be dismissed. Finally, I recommend that if you have multiple claimants, you should file a sepa- rate claim form for each claimant. This includes a wrongful death claim filed by a personal representative. Even if the per- sonal representative files a claim on behalf of multiple beneficiaries, I also recom- mend that you file a separate claim form for each beneficiary. That way, there will not be any question about what each claimant is asking for and you will have a sum certain on behalf of each, separate claimant.


There have been instances


where the amount claimed has limited the ad damnum available at trial or when the failure to list the appropriate claimants has precluded adding them at trial.13


1028 C.F.R. 14.2.


1128 U.S.C. §§2401b, 2675c. 1228 C.F.R. 14b(2).


13Davis v. Marsh, 807 F.2d 908 (11th Cir.


1987), where an administrative claim named the children of decedent and demanded $100,000. At trial, 3 additional children were added, but the ad damnum was lim- ited to $100,000; Rode v. United States, 812 F. Supp. 45 (M.D. Pa. 1992), where the fail- ure to include the spouse in an administra- tive claim precluded adding the spouse as a party once suit was filed.


38 Trial Reporter Spring 2006


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