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By Rex Bush
Early in my career as a Utah injury attorney, a young, Air National Guardsman came to me.
He was watching a softball game near the Salt Lake City Airport, when a gust of wind picked up a piece of plywood from land owned by the government.
The wind carried the plywood one hundred feet and dropped it on the young man’s wrist.
A highly respected Salt Lake City attorney told him the case was, at best, worth nuisance value of one thousand dollars.
The attorney was experienced but not in injury law.
In the law of “Torts”, (injury law) injuries caused by nature are known as “Acts of God”. )
Was this an Act of God? “Not if it could have been predicted,” says Utah injury law.
Research from the National Weather Service showed wind gusts were common near the Salt Lake City Airport.
Therefore, the Federal government should have tied down the plywood.
Claims against the federal government come under a special law passed by Congress called the Federal Tort Claims Act (FTCA). Our claim under the FTCA, resulted in a settlement thirty six (36) times that predicted by the other attorney.
AN FTCA CLAIM MUST BE FILED WITHIN TWO YEARS
Under the FTCA a claimant must file a written administrative claim with the applicable Federal agency within two years of the accrual of the claim.
TIME OF ACCRUAL
Accrual occurs when the government violates a persons rights and he or she is damaged because of it. If a postman drives over your foot while you are checking your mail, for example, accrual would be the moment his tire hits your foot.
INITIATING A CLAIM
To start the claim, the man with the injured foot would typically file United States Government Standard Form 95 (SF-95) with the appropriate Federal agency.
SPECIFIC DOLLAR AMOUNT REQUIRED
The claimant must ask for a specific dollar amount or the claim will not be considered valid.
APPROPRIATE FEDERAL AGENCY
If the claim is filed with the wrong federal agency, it may be forwarded to the appropriate one if known. However, if it is not clear which federal agency caused the injury, then the claim will be returned to the claimant and will not be considered timely filed.
SIGNATURE OF CLAIMANT
The SF Form 95 must be signed by the person making the claim for by his representative. If signed by a representative such as a lawyer then proof of the relationship (such as a fee agreement) must be attached.
IDENTIFICATION OF THE CAUSE
The written claim must clearly spell out the circumstances which gave rise to the injury and why the government is at fault. This allows the agency’s claims personnel to investigate the claim.
AGENCY HAS SIX MONTHS TO INVESTIGATE THE CLAIM
If the federal agency fails to investigate the claim within six months then suit may be filed. Suit may be filed before expiration of the six months if the agency has completed “final administrative action”. This occurs when the agency either 1) denies the claim, or 2) makes its final settlement offer.
SUIT TAKES PLACE IN FEDERAL COURT
The lawsuit against the federal government, if it becomes necessary, takes place in United States District Court (federal court) where the injured person lives or where the government’s act or omission took place.
There is no right to a jury in federal tort claims, the case is tried and decided by a federal judge.
DISCLAIMER
This article is provided for informational purposes only and is not intended to constitute legal advice. Please consult relevant legal treatises and authorities or an experienced injury lawyer for specific legal advice on your FTCA claim.
About the Author: Rex Bush is founder of Bush Law Firm near Salt Lake City, Utah where he handles personal injury cases in Utah and throughout the United States and Canada. For information on personal injury issues visit his website:
Utah Injury Attorney
Source:
isnare.com
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