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Sample of Standard Form 95, Claim for Damage, Injury, or Death (front) - 14134_315
The following amounts will be excluded from a claimant’s recovery under the FTCA: Punitive  damages.  Many  states  permit  the  plaintiff in a tort action to recover additional money from the defendant  beyond  the  amount  required  to  compensate the plaintiff for his or her loss. Such damages are known as punitive damages because they are awarded to punish a defendant who has engaged in conduct that is wanton, malicious,  outrageous,  or  shocking  to  the  court’s conscience. Under the FTCA, the government is not liable for any punitive damages that might otherwise be permitted by state law. .  Interest  before  judgment. .   Value   of   government   benefits.   When   the government is liable to pay an FTCA claim by a military member,  and  the  claim  is  not  barred  by  the  Feres doctrine, the value of government benefits (such as medical care, rehabilitation, and disability benefits) will be deducted from the military member’s recovery. l While there is no maximum to the amount of recovery   permitted   under   the   FTCA,   any   FTCA payment  in  excess  of  $25,000  requires  the  prior  written approval of the Attorney General of the United States or his or her designee. STATUTE OF LIMITATIONS The  FTCA  contains  several  strict  time  limits  that include  the  following: .  Two-year  statute  of  limitations.  The  claimant  has 2 years from the date the claim against the government accrued in which to present a written claim. If the claimant fails to present his or her claim within 2 years, it is barred forever. A claim accrues when the act or incident giving rise to the claim occurs, or when the claimant learns or reasonably should have learned about the  wrongful  nature  of  the  government  employee’s conduct. Thus, a claim arising out of an automobile accident  would  normally  accrue  when  the  accident occurred. A claim arising out of medical malpractice will  not  accrue,  however,  until  the  claimant  learns  or reasonably  should  have  learned  about  the  malpractice. Six-month  waiting  period.  When  a  claimant presents an FTCA claim to a federal agency, the agency has 6 months in which to act on the claim. During this waiting period, unless the agency has made a final denial, the claimant may not file suit on the claim in federal court. If, after 6 months, the agency has not taken final action on the claim, the claimant may then file suit under the FTCA in federal district court without waiting any longer for the agency to act. l Six-month time limit for filing suit. After the federal agency mails written notice of its final denial on the claim, the claimant has 6 months in which to file suit on the claim in federal district court. If suit is not filed within  6  months,  the  claim  will  be  barred  forever. However, before this 6-month time limit expires, the claimant  may  request  reconsideration  of  the  denial  of his or her claim. The agency then has 6 months in which to reconsider the claim. If the claim is again denied, the claimant has another 6 months in which to file suit. PROCEDURES The  following  procedures  apply  not  only  to  FTCA claims, but also, in large part, to claims cognizable under other   claims   statutes. Significant   variations   in procedures under other claims acts will be noted in the sections of this chapter dealing with those other statutes, The first step is usually the presentment of the claim to a federal agency of the government. When a claim is properly presented, the statute of limitations is tolled. A claim  against  the  government  is  presented  when  a federal  agency  receives  a  written  claim  for  money damages. A claim may be presented by ( 1 ) the injured party for personal injury; (2) the owner of damaged or lost  property;  (3)  the  claimant’s  personal  or  legal representative; or (4) a subrogee who assumed the legal rights of another person. Contents of the Claim As discussed previously, when a claim is properly presented, the statute of limitations stops running. To be  properly  presented,  the  claim  must  satisfy  the following   requirements: l  In  writing. The  claim  must  be  in  writing. Standard Form 95, Claim for Damage or Injury, should be  used  whenever  possible.  See  figure  12-1. l Signed. The claim must be signed by a proper claimant. l Claims money damages in a sum certain. The claim must demand a specific dollar amount. The courts have consistently held that a claim is not presented until it states a sum certain. If the claimant fails to state a sum certain, then the claim does not constitute a claim for purposes   of   complying   with   the   jurisdictional prerequisites  of  the  FTCA.  Observance  of  the  sum certain requirement does not prevent the claimant from 12-6

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