This article is a companion piece to this video
What happens when the government causes damages or injury? If you have a subrogation claim arising from a governmental employee’s negligence, what can you do? In the above episode of On Subrogation: Filing Claims Against State and Local Governments, Rathbone Group subrogation attorney Jason Sullivan discusses the rights and limitations around insurance subrogation in claims that involve government torts.
Can You File a Subrogation Lawsuit Against the Government?
Due to the incredible variation and intricacies of the rules in this area of subrogation, properly-handled subrogation case management is absolutely vital to maximizing recovery. The law tends to protect governments, whether local, state or federal. Additionally, laws regarding government subrogation vary by state.
Law firms focusing in subrogation need attorneys licensed in multiple states to effectively take on government employees or entities who have engaged in tortious behavior. This becomes especially true with subrogation lawsuits against the government entities, where the government is afforded some pretty broad protections under the law.
Subrogation & Government Entities: What is Sovereign Immunity?
Sovereign immunity is the concept that the government can do no wrong. If sovereign immunity applies and the at-fault party in a subrogation case is a government entity, that party is immune from liability. While this may sound like a dangerous framework (Doesn’t this make the government above the law?), admittedly, there are some cases where sovereign immunity makes sense from a policy perspective:
For instance, in Alaska, you cannot make a subrogation claim against firefighters, i.e. firefighters cannot be tortfeasors – they are risking their lives running into a fire to save people, so if they make a wrong decision, Alaska says it is unfair to hold them liable for their actions via subrogation for fire-related damage or injury.
Likewise, Mississippi keeps sovereign immunity for firefighters and police unless they act with “reckless disregard” towards someone who is not committing a crime. These things make sense – people in the line of duty encounter danger in the interest of keeping the public safe, so as a society we are going to give them some protections on liability.
Consider it akin to the sudden emergency defense in subrogation. In life-or-death situations, we do not always make the best decisions, and the law leaves room for that. If you would like to learn about affirmative defenses like the sudden emergency defense, view our On Subrogation YouTube episode, podcast discussion, and check out the accompanying article for more.
In Practice, Sovereign Immunity Doesn’t Cover Tortious Behavior
We have discussed why sovereign immunity is a useful protection for well-meaning government organizations and employees. But where are the protections for the public against negligent or tortious government entities?
Before 1946, there was no legal avenue to pursue a government tortfeasor who was working in the scope of their employment when the subrogated incident occurred. The FTCA (Federal Tort Claims Act) amended this blind spot in sovereign immunity, however, it came with broad limitations on the subrogating party, which is why the choice of law firm managing a government subrogation case is key to navigating these difficult claims.
To learn more about the Federal Tort Claims Act and how it applies to subrogation lawsuits against the federal government, view our On Subrogation episode covering government subrogation, listen to our podcast about third-party liability applied to subrogating against the government, and check out our accompanying article for more.
In the decades since the FTCA was passed, state governments have made their own additional amendments. In fact, almost all states have waived sovereign immunity to some extent; they allow for private citizens to file claims against government entities in certain situations. But as is the case with many areas of the law, there are exceptions upon exceptions and specific rules that apply to potential claims against the government. Subrogation law is nuanced and varied, even more so when it involves the government. Aggressive, detail-oriented subrogation management is integral to achieving subrogation recovery.
Let’s discuss what is required to successfully bring a subrogation case against a government entity:
Determining the Viability of Subrogating Against a State or Local Government
Every state has different subrogation laws and waivers to sovereign immunity, so seeking out a subrogation law firm with specialists and attorneys licensed and experienced in your state is always the first place to start. Outsourcing these difficult claims to a subrogation attorney will maximize your chances of recovering loss from a government tort.
You must be prepared for certain limitations on possible subrogation recovery; states often have limits on dollar amounts, which may fall short of the financial extent of the damages. Other states, such as Ohio, have waived sovereign immunity for the general public but bar subrogation claims against government entities. In other words, the government will compensate private citizens when it causes damages but insurance companies will not be compensated by the state.
Pursuing subrogation recovery from a government entity in this state is extremely difficult, and requires a subrogation-focused Ohio attorney experienced in subrogating claims involving government torts. Sometimes, the best route forward is to identify other liable parties associated with the incident.
So how do you know if a government entity is the tortfeasor in a loss case? And which government entity is responsible? Jason discusses an example of damaging your car on a pothole. Who is responsible for the management and upkeep of that road? The city? The county? The state’s DOT? You must figure this out before filing a claim; after all, you have to know who you are filing a claim against so your subrogation demand is not outright rejected.
Jumping Through the Administrative Hoops of Government Subrogation
One of the main reasons it is important to identify if a government entity is responsible for your loss is that many states have specific time limits and procedural constraints. These regulations function as safeguards to a complete waiver of sovereign immunity. While they protect the government employee or entity, they also complicate the subrogation process and even the viability of bringing a subrogation lawsuit against the government.
Two key factors that will cause your subrogation lawsuit to be rejected if you fail stay on top of them are:
- Notice deadlines: Most states require you to put the government entity on notice before filing a subrogation lawsuit. There are usually tight deadlines on these notices, and they are made more complicated by rigid rules about what detail must be included in the notice. The different states enforce these notice requirements with varying consequences for non-compliance.
For instance, among several other states, Jason Sullivan is a licensed Indiana subrogation attorney. The notice requirement is met in Indiana if you have largely followed the regulations. In other states, like Utah, this is not so. In Utah, if you not dot every i and cross every t correctly, the State will reject your claim.
- Statute of limitations: Typically, the deadline to file a suit against a government entity is shorter than the deadline for a negligence claim against a private entity. To complicate things further, states frequently calculate when the statute of limitations begins to start from either the date of the loss, or from the date that notice was served, or from the date of rejection. Failure to know which it is and file before the deadline can render a previously viable subrogation claim a non-starter.
Remember: just because you receive a response of some sort from the government, it is not a guarantee that you have notified the right parties. If you do not notify the right parties in time, it does not matter how well you followed those notice regulations and deadlines – your claim will likely be rejected.
Subrogation Consultants are Vital for Maximizing Recovery in Claims against Governments
Let’s bring it all together; what are the main takeaways from Jason’s advice on the subrogation process when it comes to tortious government entities?
1. Make sure there is a government entity involved and identify which entity is responsible.
2. Ensure in your initial investigation that the government tortfeasor was acting within their scope of employment when they caused the damages/injury.
3. Figure out if the relevant state jurisdiction has exceptions to sovereign immunity that apply to your subrogation claim.
4. Identify the notice requirements and notice deadlines.
5. Closely monitor and follow the statutes of limitations during the subrogation process.
There are many moving parts to filing a subrogation lawsuit against the government, and even more tricky clauses in those sovereign immunity waivers. So do yourself a favor and seek out a subrogation consultant if you have experienced a loss at the hands of a government tortfeasor – it’s vital to maximizing subrogation recovery.If you would like more informational material on subrogation, including law, process, strategy, and more, visit Rathbone Group’s YouTube channel, blog and podcast library to access our On Subrogation series, a free educational resource for subrogation and insurance professionals. And if you have a question about something we haven’t yet covered, reach out at [email protected] or [email protected] to see it featured in a new episode.