Caps & Immunities
28 USC 1346(a). Tese “takings” claims involve condemnation actions as well as allegations of “taking” caused by government actions which inhibit the use of property such as aircraft overflights noise, artillery shelling, or other interference with one’s property. Te Court of Federal Claims has exclusive jurisdiction of the Tucker Act claims as long as they are in excess of $10,000. For claims less than $10,000, suit should be filed with the U.S. District Court or the Court of Federal Claims. Claims involving the loss of intangible property rights should be filed with the Court of Federal Claims. 31 USC 3702. Contractual claims for rent or other services and damage to
real property that involve either an express or implied contract can be settled under the FTCA. While the FTCA normally has a two year statute of limitations, any claim based upon a contract theory has a six year statute of limitations. 28 USC 2401, 2501.
II. Claims Against Independent Contractors Te United States is not liable for claims arising out of the
act of an independent contractor. 28 USC 2671. In cases where the status of the actor is unknown, it is recommended that you file a claim under the FTCA. Te agency will notify you if the tort was committed by an independent contractor. When faced with such a situation, you will need to file the case against the
independent contractor just as you would any other party. If
there is a question involving joint liability and it appears that the injury was caused by both the independent contractor and a United States employee, then you would first need to file the claim under the FTCA. Once you receive notice that an independent contractor is involved, you would then need to determine how best to pursue that case against the independent contractor. Because original exclusive jurisdiction is vested in the federal courts for all FTCA cases, any subsequent lawsuit involving these co-actors would need to be filed in federal court. In addition, because the statutes of limitation for each of the parties may be different within your jurisdiction, you need to pay very close attention to those time limits.
III. Claims by Active Duty Soldiers Strategic Finance for Law Firms® Over a Decade In Business
A claim for injury or death or for damage to property of a member of the Armed Forces that occurs “incident to service” is not payable under the FTCA. Feres v. United States, 340 US 135 (1950). Te term “incident to service” has been interpreted quite broadly by most courts, to include the Supreme Court, and a number of theories have been set forth by the courts as to why this exclusion is important. In the case of United States v. Johnson, 481 US 681 (1987), the court gave a lengthy justification for the enforcement of the “incident to service” exclusion in that they feared that the military command relationship would be disruptive if such claims were allowed to go forward. Other courts have also used the fact that there are other compensation systems such as disability and retirement to justify the “incident to service” exclusion set forth in Feres. Importantly, not all claims involving active duty military soldiers are excluded. One must look at the soldier’s duty status, the location of the incident, whether the soldier was acting pursuant to some military duty and the connection to the command structure. Tere are, in fact, a number of cases that have reached different conclusions as to whether an active duty service member has been allowed to pursue a claim under the FTCA. See Tomas v. Sanchez, 398 F. Supp. 500 (D.N.J. 1975) aff’d. 539 F. 2d 955 (3d Cir. 1976) cert. denied; Parker v. United States, 611 F. 2d 1007 (5th Cir. 1980); and Warner v. United States, 720 F.2d 837 (5th Cir. 1983). If certain services are provided to a service member pursuant to their status, then claims related to those services will be excluded. Specifically, if medical care is provided because of the individual’s military status, then any claim for medical malpractice is going to be excluded under the “incident to service” exception. Tis exclusion has been held to bar a suit for medical negligence based upon a pre-induction physical as long as the applicant has been sworn in at the time of the negligent act. Such a case might arise if a cancer or heart condition is
30 Trial Reporter / Spring 2011
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