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Tuesday, January 4, 2011

Information for those Considering Submitting their own FTCA Claims.


I am no expert in correctly filling out an administrative claim under the FTCA.

I was given this by another investor who has been researching this for more than a year. These are the pitfalls and the relevant case law you will need to know if you decide to make your own claims without entrusting it to a lawyer or other expert:-

Below are just some of the problems that claimants run into... a person who wants to file their own claim should either read a lot of case law or consult with an attorney before filing out the SF-95 claims form... pretty tough to make this concise.

Must Include Sum Certain. See 28 U.S.C. §§ 2401, 2675(b); 28 C.F.R. § 14.2 Hamilton v. U.S., 741 F. Supp. 1159 (D.N.J. 1990). Failure to state a sum certain constitutes a fatal defect in the claim.

Complaints to Individuals. A complaint to an individual U.S. employee is not a claim; includes treating physician, facility commander or administrator, or IG. Winston Brothers Co. v. U.S., 371 F. Supp. 130 (D. Minn. 1973); Sullivan v. U.S., 428 F. Supp. 79 (E.D. Wis. 1977). Contra Blue v. U.S., 567 F. Supp. 394 (D. Conn. 1983). See also Roper Hospital, Inc. v. U.S., 869 F. Supp. 362 (D.S.C. 1994) (letter to Office of Personnel Management (OPM) by civilian hospital requesting review of denial of Mail Handler's benefits does not constitute a claim);

Spouse’s Name on SF 95 Not Sufficient. Identifying claimant's spouse as such on SF 95 not sufficient to present written demand for spouse. Rucker v. Department of Labor, 798 F.2d 891 (6th Cir. 1986). See also Nazarenus v. U.S., 1996 U.S. Dist. LEXIS 4096, 1996 WL 156408 (E.D. Pa.) (same); Davis v. U.S., 834 F. Supp. 517 (D. Mass. 1993) (same); Richardson v. U.S., 831 F. Supp. 657 (N.D. Ind. 1993) (spouse must file separate claim for loss of consortium–cites McNeil v. U.S., 508 U.S. 106 (1993), appealed from 7th Cir.);

Failure to Provide Specific Facts. Shoemaker v. U.S., 1997 U.S. Dist. LEXIS 2322, 1997 WL 96543 (S.D.N.Y.) (Claim that does not state place and date is not a claim since it is so attenuated and insubstantial under Hagans et al. v. Lavine, 415 U.S. 528 (2d Cir. 1974)).

Appropriate Documentation. Accompanied by appropriate evidence and information (28 C.F.R. § 14.4). A proper claim has sufficient documentation to permit investigation. Cook v. U.S. on behalf of Department of Labor, 978 F.2d 164 (5th Cir. 1992); Tidd v. U.S., 786 F.2d 1565 (11th Cir. 1986). Failure to document administrative claim results in dismissal of suit.

Valid Claims Only. Only a valid claim can be amended–not one lacking a sum certain. Christides v. U.S., 2004 U.S. Dist. LEXIS 7706 (N.D. Ill.) Letter received several days before SOL ran but not containing sum certain or place of accident cannot be amended by SF 95 received after two years ran.

So, filing an invalid claim a few days before the SOL runs out is a terrible way to throw away your chance at recovery under the FTCA.

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