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Excluded Classes of Claimants - 14134_320
Justice  will  represent  the  Department  of  the  Navy  in court,  naval  judge  advocates  assist  by  preparing litigation reports summarizing the pertinent facts in the case. EXAMPLES The following examples demonstrate the operation of  legal  principles  governing  FTCA  claims: 1. Facts.  YN3  Daytona,  the  command’s  duty driver, was on an authorized run in Pensacola, Florida, when he was involved in an auto accident with Mr. Lucky.  The  police  report  clearly  indicates  that  the accident was caused by YN3 Daytona’s negligent failure to stop at a red light and that there was nothing Mr. Lucky  could  have  done  to  avoid  the  collision.  Mr. Lucky has filed, within 2 years of the accident, an FTCA claim for $75,000 damage—including property damage to  his  automobile,  medical  expenses,  and  punitive damages.  Can  he  collect’? Solution. Yes (except for the punitive damages). The  accident  was  caused  by  the  negligence  of  a government  employee,  YN3  Daytona,  who  was  acting within the scope of his federal employment. None of the exclusions from liability apply. The claim does not arise out of an excluded governmental activity. It is not cognizable  under  any  other  claims  statute  and  the claimant  is  not  a  member  of  any  excluded  class  of claimants. Therefore, this claim is cognizable under the FTCA,  Punitive  damages  arc  excluded  from  FTCA compensation. Because the claim is for $75,000, it can be paid by a local adjudicating authority only if Mr. Lucky  is  willing  to  accept  $20,000  or  less  in  full settlement of his claim. Otherwise,  an  adjudicating authority in OJAG will approve his claim. 2. Facts. Mrs. Shimmy, the dependent wife of an active duty naval officer, underwent surgery at the Naval Hospital,  Portsmouth,  Virginia.  The  surgeon,  CDR Badknife,  negligently  severed  a  nerve  in  her  neck.  At first, Mrs. Shimmy was paralyzed from the neck down, but after 5 months’ treatment and rehabilitation at the Naval Hospital she regained complete use of her arms, legs, and trunk. She has lost 5 months’ wages from her civilian  job,  for  which  she  was  ineligible  for  state disability  compensation.  Also,  she  suffers  from  slight residual  neurological  damage  that  causes  her  shoulders to twitch involuntarily. This twitching is permanent. Mrs. Shimmy has presented an FTCA claim. Can she collect? Solution Yes (from the United States, but not from Dr. Badknife), The paralysis and lasting damage were caused by the negligent acts of CDR Badknife, a federal employee  acting  within  the  scope  of  his  employment. None of the three general types of exclusions from FTCA liability apply. The  Feres doctrine  does  not  apply to this claim because it involved personal injury to a military dependent not to active duty military personnel. Therefore, this claim is payable under the FTCA. The value of medical care and rehabilitation services Mrs. Shimmy received at the Naval Hospital will be deducted from   her   compensation;   however,   she   will   be compensated for all other nongovernmental medical services  as  well  as  for  the  pain  and  suffering  she endured, the wages she has lost already (and likely will lose  in  the  future),  and  the  permanent  nature  and disfigurement of her injury. No claim will lie against CDR  Badknife  individually. MILITARY CLAIMS ACT Like the FTCA, the Military Claims Act, 10 U.S.C. § 2733 (1982) (MCA), compensates for personal injury, death,  or  property  damage  caused  by  activities  of  the federal  government.    MCA claims are limited to two general types: (1) injury, death, or property damage caused  by  military  personnel  or  civilian  employees acting within the scope of their employment and (2) injury,  death,  or  property  damage  caused  by noncombatant  activities  of  a  peculiarly  military  nature. The  MCA  provides  compensation  for  certain  claims that  are  not  payable  under  the  FTCA.  First,  its application  is  worldwide. Also, the claimant has no right to sue the government if his or her MCA claim is denied by the adjudicating authority. Finally, unlike the FTCA  that  creates  statutory  rights  for  claimants,  the MCA is operative only “under such regulations as the Secretary of a military department may prescribe.” Each  service  Secretary  has  issued  regulations  stating under what circumstances claims will be paid by his or her department under the MCA. A claimant has no greater rights than what is prescribed by each service’s regulations. SCOPE OF LIABILITY The MCA is limited to two rather broad categories of  claims: those  arising  from  the  acts  of  military employees in the scope of their employment and those incident  to  noncombatant  activities  of  a  peculiarly military  nature. The Department of the Navy is liable under the MCA for injury, death, or property damage caused by its military members or civilian employees acting within 12-11

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