Is it possible to seek subrogation recovery from the federal government in cases of loss due to negligence or tortious behavior? The quick answer: yes! But the long answer is much more involved; successfully subrogating cases like these is not exactly straightforward. In the above episode of On SubrogationThe Federal Tort Claims Act, RG attorney Jason Sullivan explains this tricky subrogation process.

Subrogating Against the Federal Government: What is the Federal Tort Claims Act?

In 1946, the Federal Tort Claims Act gave the right for private parties to file claims against the federal government for torts committed by federal employees while acting in the scope of their employment with the federal government. Prior to this statute, the federal government could not be sued for the acts of its employees. 

The Federal Tort Claims Act, or FTCA, allows citizens to pursue tort claims against federal employees like postal service workers, the military, members of government departments like Homeland Security, and even Veterans Administration hospital doctors. But just because it is legally possible to file a claim does not mean that the process is easy, and there are many instances in which the FTCA does not apply.

Limitations of the FTCA in Pursuing Subrogation Recovery: The Sovereign Immunity Doctrine

The FTCA is limited by the Sovereign Immunity Doctrine and does not give citizens sweeping powers to sue the federal government, but rather allows some tort claims under very specific circumstances. Let’s look at a hypothetical situation: 

Say a person is walking home one day when a United States Postal Service van runs through a stop sign and hits them. The at-fault party is the postal service employee who was at the wheel, and because driving a mail van is within the scope of his employment by the federal government, the injured person can use the FTCA to file a claim. 

However, an exception would be if the person in the vehicle is not a USPS driver, but rather an independent contractor hired by a federal agency to quickly make a delivery. Since this person is a contractor and not recognized as a federal employee, the Federal Tort Claims Act would not apply. 

Subrogating cases where an independent contractor is at-fault has its own sets of obstacles that require specific strategies for pursuing recovery via subrogation. RG has an article and accompanying episode of On Subrogation addressing the Independent Contractor Defense for these types of cases.

How often is the Federal Tort Claims Act applicable in a given subrogation action? Likely more often than you would think. If you or someone else is unsure whether the FTCA applies to a specific situation, consider contacting a subrogation attorney who can help determine if you are eligible to file a claim.

Important Information about Filing a Tort Claim Against a Federal Entity

This is where things can get muddy if subrogation counsel and carrier fail to stay on top of the many conditions included in the FTCA. Jason discusses 6 important facets to navigating a subrogation lawsuit where the FTCA applies:

  1. There is a two-year period after the initial incident within which a person must notify the federal government about the claim. This notification is done by filling out a Standard Form 95.
  2. Make sure to submit Standard Form 95 to the correct government agency and address and with appropriate supplemental information like photos of the damage and estimates of the loss.
  3. If the notice requirement is met and the claim is not paid, a person has 6 months from the date the government mails notice of the full or partial rejection. In any event, the lawsuit must be filed within 6 years from the date of the loss.
  4. If someone does not receive a response to their claim, they have the right to treat 6 months of government silence as a rejection of their claim. After the 6 months of non-response prerequisite is fulfilled, they can then carry on and file suit.
  5. However, a party is not required to file suit if the government does not respond after 6 months, as a person can wait longer before filing, as they still ultimately have 6 years from the date of loss to file a lawsuit.
  6. All suits must be filed in the appropriate federal district court, as only the federal courts have the jurisdiction to hear any claims against the federal government. It cannot be filed in state court.

Maximizing Recovery in FTCA Subrogation Suits Requires Skilled Attorneys

Almost everything about litigating a subrogated matter changes once it is determined the Federal Tort Claims Act applies. There are different court procedures, rules of evidence, and statutes like the ones discussed above, than in civil court. Successfully recovering from loss caused by a federal entity is possible, but experienced subrogation counsel is key to that success.

If you or your organization is looking for more informational material on insurance law and important topics in subrogation, Rathbone Group covers complex subjects in digestible ways in our podcast and video series, On Subrogation. For more information on Rathbone Group’s capabilities and services, inquire at [email protected].