Property Damage Limits on the Independent Contractor and - - PowerPoint PPT Presentation

Federal Tort Claims Act Cases: Recovering for Medical Malpractice, Personal Injury, and Property Damage

Limits on the Independent Contractor and Discretionary Function Exceptions

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

The audio portion of the conference may be accessed via the telephone or by using your computer's

• speakers. Please refer to the instructions emailed to registrants for additional information. If you

have any questions, please contact Customer Service at 1-800-926-7926 ext. 1.

WEDNESDAY , JULY 8, 2020

Presenting a live 90-minute webinar with interactive Q&A Michael T . Jaques, Partner, Sessums Dallas, Ridgeland, Miss.

• J. Callen Sparrow, Partner

, Heninger Garrison Davis, Birmingham, Ala. Ian Wallach, Founding Partner , Law Offices of Ian Wallach, Los Angeles

Tips for Optimal Quality

Sound Quality If you are listening via your computer speakers, please note that the quality

• f your sound will vary depending on the speed and quality of your internet

connection. If the sound quality is not satisfactory, you may listen via the phone: dial 1-877-447-0294 and enter your Conference ID and PIN when prompted. Otherwise, please send us a chat or e-mail sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the ‘Full Screen’ symbol located on the bottom right of the slides. To exit full screen, press the Esc button.

FOR LIVE EVENT ONLY

Continuing Education Credits

In order for us to process your continuing education credit, you must confirm your participation in this webinar by completing and submitting the Attendance Affirmation/Evaluation after the webinar. A link to the Attendance Affirmation/Evaluation will be in the thank you email that you will receive immediately following the program. For additional information about continuing education, call us at 1-800-926-7926

• ext. 2.

FOR LIVE EVENT ONLY

Program Materials

If you have not printed the conference materials for this program, please complete the following steps:

• Click on the link to the PDF of the slides for today’s program, which is located

to the right of the slides, just above the Q&A box.

• The PDF will open a separate tab/window. Print the slides by clicking on the

printer icon.

FOR LIVE EVENT ONLY

5

OVERVIEW OF THE FEDERAL TORT CLAIMS ACT

• J. CALLEN SPARROW

Set Priorities Focus Resources Agree on Results Assess and Adjust

In 1946, Congress enacted the FTCA which authorized recovery from the United States for death, personal injury or property damage caused by the negligence of a federal employee while acting within the scope of their employment. 28 USC § 1346(b).

6

Set Priorities Focus Resources Agree on Results Assess and Adjust

The United States is liable. . . “in the same manner and to the same extent as a private individual under like circumstances, but [is not] liable for interest prior to judgment or for punitive damages.” 28 USC § 2674.

7

Set Priorities Focus Resources Agree on Results Assess and Adjust

STATUTE OF LIMITATIONS

• Administrative claim must be filed within two years after the

cause of action accrues. 28 U.S.C. § 2401(b).

• Suit must be filed within six months of the claim’s denial by

the agency to which it was presented. 28 U.S.C. § 2401(b).

• If the agency fails to make a final disposition of a claim within

the six months, the claimant may file suit.

• The statute is not tolled by infancy or disability.

8

Set Priorities Focus Resources Agree on Results Assess and Adjust

ADMINISTRATIVE CLAIM

• Must exhaust administrative remedies.
• Notice must be in writing to the appropriate agency – Standard Form 95.
• Claim must be signed by the claimant or individual filing claim on

behalf of the claimant.

• Claim must be filed within two years of accrual. 28 U.S.C. § 2401(b).
• Exceptions: Claims which may not be made pursuant to the FTCA are

found at 28 U.S.C. § 2680.

9

Set Priorities Focus Resources Agree on Results Assess and Adjust

• A written claim is appropriately presented to the government agency pursuant to 28

U.S.C. 28 U.S.C. § 2675(a) when it is received by the agency.

• The date of mailing the Notice of Claim does not constitute it being “presented.” 28

C.F.R. § 14.2(a).

• The administrative claim must include a claim for money damages in a sum certain.

28 C.F.R. § 2675; 28 C.F.R. § 14.2(a).

• Suit must be filed within six months of denial by the agency. 28 U.S.C. § 2675(a).
• If an agency fails to deny by the end of six months, the claimant may file his claim

at any time thereafter, 28 U.S.C. § 2675(a).

10

Set Priorities Focus Resources Agree on Results Assess and Adjust

WHO MAY SUE?

• Although the FTCA in general adopts state law to determine

whether the facts give rise to a cause of action, it is federal law which determines “who” is entitled to assert a cause of action.

11

Set Priorities Focus Resources Agree on Results Assess and Adjust

• Generally speaking, any person who has the capacity to sue

and whose claim is within the coverage of the FTCA may institute an action against the US under the Act.

12

Set Priorities Focus Resources Agree on Results Assess and Adjust

WHO MAY BE SUED?

• The plaintiff must name the “United States” as the party-
• defendant. There is no other proper defendant.

28 U.S.C. § 2679.

13

Set Priorities Focus Resources Agree on Results Assess and Adjust

SERVICE

Service is properly effected on the United States by serving a copy of the Summons and Complaint to the United States Attorney of the district in which the action is brought as well as by registered or certified mail to the Attorney General of the United States. F.R.C.P. Rule 4(i)(1).

14

Set Priorities Focus Resources Agree on Results Assess and Adjust

DAMAGES

The FTCA is a waiver of sovereign immunity, granting certain plaintiffs in tort a claim for money damages.

• Relief other than money damages is not authorized by the FTCA.
• Damages are limited to the amount listed on the written claim

presented to the agency. 28 U.S.C. § 2675.

15

Set Priorities Focus Resources Agree on Results Assess and Adjust

• The only exception is if an increased amount is “based upon newly

discovered evidence not reasonably discoverable at the time of presenting the claim” or “upon allegation and proof of intervening facts relating to the amount of the claim.” 28 U.S.C. § 2675.

• Punitive damages are not allowed.
• If state law only allows punitive damages in wrongful death case

then plaintiff will be entitled to compensatory damages as “measured by the pecuniary injuries resulting from such death to the persons respectfully, for whose benefits the action was brought. . .” 28 U.S.C. § 2674.

16

Set Priorities Focus Resources Agree on Results Assess and Adjust

APPLICABLE LAW

The FTCA provides that liability of the United States will be determined “in accordance with the law of the place where the act or

• mission occurred.” 28 U.S.C. § 1346(b).
• Tried without a jury to a Federal District Judge.
• The FTCA provides a remedy for “. . .personal injury or death

caused by the negligent or wrongful act or omission of any employee of the government while acting within scope of his office

• r employment. . .”

17

Set Priorities Focus Resources Agree on Results Assess and Adjust

• The remedy of money damages provided by the Federal Tort

Claims Act is the exclusive remedy resulting from the negligent act or omission of an employee of the government while acting within the line and scope of his employment. 28 U.S.C. § 2679(b)(1).

18

Set Priorities Focus Resources Agree on Results Assess and Adjust

RELEVANT STATUTES

28 U.S.C. § 1346(b) 28 U.S.C. § 1402(b) 28 U.S.C. § 2401(b) 28 U.S.C. § 2402 28 U.S.C. §§ 2671-2680

RELEVANT REGULATIONS

28 C.F.R. 14.1 - 14.11

19

Set Priorities Focus Resources Agree on Results Assess and Adjust

THANK YOU

• J. Callen Sparrow

jcsparrow@hgdlawfirm.com

20

21

IAN WALLACH, LAW OFFICE OF IAN WALLACH PC IAN@WALLACHLEGAL.COM LOS ANGELES, CA 90064

22

EXCEPTIONS

• CONTRARY TO WHAT THE U.S. WILL ARGUE…..
• THESE EXCEPTIONS ARE TO BE “NARROWLY

CONSTRUED”

– Whisnant, 400 F. 3d 1177 – Research the cases the USA is relying on – don’t concede that these exceptions are to be reviewed narrowly – they are not.

IAN WALLACH, LAW OFFICE OF IAN WALLACH PC IAN@WALLACHLEGAL.COM LOS ANGELES, CA 90064

23

28 U.S.C. § 2671 The Independent Contractor Exception

IAN WALLACH, LAW OFFICE OF IAN WALLACH PC IAN@WALLACHLEGAL.COM LOS ANGELES, CA 90064

24

“Employee of the government” includes (1) officers or employees of any federal agency, members of the military or naval forces of the United States, members

• f the National Guard while engaged in training or duty under section 115, 316,

502, 503, 504, or 505 of title 32 [32 USCS § 115, 316, 502, 503, 504, or 505], and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation, and (2) any officer or employee of a Federal public defender

• rganization, except when such officer or employee performs professional

services in the course of providing representation under section 3006A of title 18 [18 USCS § 3006A]. “Acting within the scope of his office or employment,” in the case of a member

• f the military or naval forces of the United States or a member of the National

Guard as defined in section 101(3) of title 32 [32 USCS § 101(3)], means acting in line of duty.

IAN WALLACH, LAW OFFICE OF IAN WALLACH PC IAN@WALLACHLEGAL.COM LOS ANGELES, CA 90064

25

Or….. No Vicarious Liability (Don’t Even Try)

IAN WALLACH, LAW OFFICE OF IAN WALLACH PC IAN@WALLACHLEGAL.COM LOS ANGELES, CA 90064

26

FIND A HOOK Not exercising control Did the USA maintain control over anything? Buildings? Property? Care?

IAN WALLACH, LAW OFFICE OF IAN WALLACH PC IAN@WALLACHLEGAL.COM LOS ANGELES, CA 90064

27

FIND A HOOK Edison v. USA, 822 F.3rd 510 (9th Cir. 2016)

IAN WALLACH, LAW OFFICE OF IAN WALLACH PC IAN@WALLACHLEGAL.COM LOS ANGELES, CA 90064

28

28 U.S.C. § 2671 The Independent Contractor Exception

IAN WALLACH, LAW OFFICE OF IAN WALLACH PC IAN@WALLACHLEGAL.COM LOS ANGELES, CA 90064

29

FEDERAL TORT CLAIMS ACT - 1946

28 USC § 1346(B) WAIVER OF SOVEREIGN IMMUNITY FOR TORT CLAIMS DISCRETIONARY FUNCTION EXCEPTION

Michael T. Jaques, Esq. Sessums Dallas, PLLC 240 Trace Colony Park Ridgeland, Mississippi 39157 (601) 933-2057 30

How much $$$$? $318,912,807.83 October 1, 2017 - September 30, 2018 U.S. Department of Treasury Bureau of Fiscal Services

31

EXCEPTIONS TO WAIVER

28 USC § 2680(a) - (n)

• negligent transmission of letters or postal matter
• law enforcement officers administering customs and excise laws
• certain admiralty claims against for which federal law provides an alternative

remedy

• administering certain provisions of the Trading with the Enemy Act of 1917
• caused by the imposition or establishment of a quarantine by the United

States

• intentional torts committed by federal employees
• caused by the fiscal operations of the Treasury or by the regulation of the

monetary system

• arising out of the combatant activities of the military/naval forces/Coast

Guard during war

• claims arising in a foreign country
• claims arising from the activities of the Tennessee Valley Authority
• claims arising from the activities of the Panama Canal Company
• activities of a Federal land bank/Federal intermediate credit bank/bank for

cooperatives

32

Discretionary Function Exception “Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation…or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty.” 28 USC §2680(a)

33

BUT WHY?

1. "(P)revent[s] judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Berkovitz ex rei. Berkovitz v. United States, 486 U.S. 531, 536-37 (1988).

• legislature and agencies are equipped to make decisions - courts are

not 2. Intended to "protect the Government from liability that would seriously handicap efficient government operations.” United States v. Muniz, 374 U.S. 150, 163 (1963).

• motivation for decision - “sound policy decisions” vs. “scared of being

sued” 3. Exception “ ...marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984))

34

Discretionary Function Exception –

• most frequently asserted
• most litigated exception
• most successful

US wins on Agent Orange, HIV exposure, radiation, asbestos

35

TEST and ANALYSIS

Positive statement of elements: If the federal employee was engaged in conduct that was: (1) “discretionary,” and; (2) “policy- driven” - then exception applies. Gordo-Gonzalez v. United States, 873 F.3d 32, 36 (1st Cir. 2017). Negative/Statement of exclusion: If the federal employee was engaged in conduct that; (1) does not involve any discretion, or; (2) involves discretion, but does not involve the kind of discretion- consideration of public policy - that the exception was designed to protect, then exception does not apply.

36

WHAT CONDUCT IS “DISCRETIONARY”?

• What specific conduct caused the harm?

(Discretionary acts undertaken in fulfillment of mandatory/ministerial duties meet the test).

• Did it involve an element of judgment or choice?

(Probably, unless statute or law prescribes a different course of conduct).

37

WHAT CONDUCT IS “POLICY DRIVEN”?

• 1. Public policy considerations
• Exception ". . . protects ... only governmental actions and decisions based on

considerations of public policy.” Berkovitz ex rei. Berkovitz v. United States, 48 6 U.S. 531, 537 (1988).

• Only protects and exempts acts/decisions that ". . . implicate[s] social, economic,

[or] policy judgments." Gonzalez v. United States, 814 F.3d 1022, 1033 (9th Cir. 2016). Strong argument for US - “balance competing interests” - safety v. costs.

• 2. “Objective” standard - not a ”fact question” of subjective intent or deliberative process.

No requirement US prove actual policy decision was made/policy considered.

• Is the decision “susceptible to a policy analysis”?
• No requirement that decision be “correct”, non-negligent, or in conformity with

the stated policy purposes. 3. Identity/position of actor/decider not important - no requirement that actor/US employee be a formal “policy maker.”

38

Traps and Hints Notice of Claim – state law and federal law State law damage caps – affirmative defense Form 95 – one for each – derivative claims United States Attorneys Manual (“Justice Manual”) https://www.justice.gov/jm/justice-manual

39

THANK YOU

Michael T. Jaques, Esq.

mjaques@sessumsdallas.com

40