Federal Tort Claims Act and the Feres Doctrine

Suing the Federal Government for negligence can be a daunting task. There are very strict requirements that you must follow in order for your rights to be protected. Our experienced attorneys are here to help.

Under the Federal Tort Claims Act, an individual may file a lawsuit against the federal government for injuries incurred as a result of the negligence of a government employee. In Feres v. United States, the Supreme Court concluded that members of the United States armed forces could not bring a claim under the FTCA for injuries related to their military service. (Feres v. United States, 340 U.S. 135, 138 (1950).) It is important to note that the Feres Doctrine only applies to active duty military members. It does not apply to claims brought by military spouses, dependents, or retired military personnel for injuries suffered as a result of the negligence of a government employee. Several cases have applied the Feres Doctrine to expand its scope and further limit the rights of active duty armed forces personnel when they have been injured by the negligence of government employees at military hospitals.

A lawsuit filed on behalf of an active-duty nurse who died after giving birth at a naval hospital intends to change that. In 2015, Walter Daniel filed a wrongful death lawsuit on behalf of his wife, Rebekah Daniel. In the lawsuit, Mr. Daniel alleges that the medical staff at Bremerton Naval Hospital were negligent in caring for his wife when she began experiencing significant post-partum hemorrhaging. The Western District Court of Washington dismissed the lawsuit citing the Feres Doctrine. Mr. Daniel appealed the decision to the Ninth Circuit Court of Appeals. The Ninth Circuit affirmed the District Court’s ruling concluding that the “case was barred by the Feres Doctrine” because the injury was “incident to [her] service.” (Daniels v. United States, 889 F.3d 978, 982 (2018).) The Court further stated “[i]f ever there were a case to carve out an exception to the Feres doctrine, this is it. But only the Supreme Court has the tools to do so.” (Id.)

After a rehearing in front of the Ninth Circuit was denied, Mr. Daniel set out to determine if the Supreme Court would do just that – carve out an exception to the Feres Doctrine and allow him to pursue justice for his deceased wife. Mr. Daniel has filed a petition to have the Supreme Court of the United States review his wrongful death lawsuit.  It remains to be seen if Supreme Court of the United States will grant the petition and reconsider this archaic judicial doctrine. You can follow the Supreme Court and read its opinions at https://www.supremecourt.gov/opinions/slipopinion/18.

Our attorneys have successfully litigated multimillion dollar Federal tort cases against the United States government under the FTCA. If you are a military spouse, dependent, retired military personnel, or your child was injured at birth in a government hospital, you may be entitled to compensation. Please contact Mulligan, Banham, and Findley to speak with a lawyer about your rights.

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The most devastating fires in California’s history are still burning at the Camp Fire in Northern California and the Woolsey/Malibu Fire in Southern California —yet already there is talk about changes in California laws regarding fire liability. While consumer advocates will struggle to revoke the utilities’ ability to pass on the costs of fires, it is expected that utilities will seek immunity to further limit their exposure to liability.

Mulligan, Banham & Findley are investigating claims about the recent California fires. Call the number on this page, or use our Contact Form, to tell us about your experience.

Threatening to declare bankruptcy after PG&E was found responsible for previous fires, this utility company spent over $10.5 million dollars just last year lobbying the state legislature[i] with the hope of currying favorable laws. It is reasonable to assume their lobbying efforts are not at an end, and in fact, they will probably step up their efforts.

In response to lobbying, earlier this year, the California legislature enacted Senate Bill 901.  Unless amended, starting in 2019, this new state law will, under certain conditions, pass the expense of fire liability costs on to consumers and allow utilities to sell bonds to offset fire liability costs. While this new legislation won’t affect liability for the pending fires, it will give utilities a possible pass for future calamities. Before it even comes into effect, this new legislation should be amended to prevent utilities from passing the costs on to consumers.

Utility companies balk at California courts using a “strict liability” approach to hold utility companies accountable for fires caused by their equipment, regardless of negligence in maintaining the equipment. Why? Because electricity is inherently dangerous and it is well established that utility lines must be properly maintained and surrounding trees and vegetation must be frequently cleared away from power lines or devastating fires can occur. [ii]

Preliminary investigation reveals PG&E utility’s role in triggering the pending Camp Fire. This devastating fire obliterated much of Paradise and devastated surrounding Butte County, resulting in over 63 deaths, 631 or more people still missing and the destruction of over 7,600 homes–as of the time of this blog post.  What did PG&E do… or more accurately, what didn’t this utility do that contributed to the fire? The utility company neglected to clear trees that were interfering with lines, as required by law.   Just fifteen minutes before the blaze erupted, PG&E reported a power outage on an electrical transmission line in the immediate vicinity of where the fire sparked. While PG&E evaluated whether to shut down power lines in the area, it neglected to do so. To literally add insult to injury, PG&E is grossly underinsured with approximately $1.4 billion for the pending fiscal year, while some estimates for the Camp Fire exceed $15 billion dollars,[iii] or more than ten times the available insurance coverage.

Similarly, the massive Woolsey fire in Southern California was also apparently triggered by failure to clean up a contaminated utility subsite as previously contractually required. [iv]  The fire reportedly began about 1000 yards away from the site of a 1959 partial nuclear meltdown of a reactor, on property located at Santa Susana Field Laboratory (SSFL or Rocketdyne).  Two minutes before the Woolsey fire began, Southern California Edison reported an outage at its Chatsworth substation which is located at the SSFL complex, just a few hundred yards from the site of the previous partial nuclear meltdown.  This substation was originally built to provide electricity from the reactor. Just last year, the U.S. Department of Energy, NASA and the Boeing Company signed binding agreements to clean up this  contaminated SSFL site but never took any steps to do so.  While the investigation is ongoing, some maintain that the “Woolsey Fire likely released and spread radiological and chemical contamination that was in SSFL’s soil and vegetation via smoke and ash,” according to Dr. Bob Dodge, president of Physicians for Social Responsibility-Los Angeles. While all wildfire smoke can be hazardous, independent testing and air monitoring is pending to prove whether the Woolsey fire released radiation and other hazardous chemicals into the air, contributing to the fire as well as increasing risks to the public from toxic air contamination.

Given predictions for continuing Santa Ana winds and more fires in California’s future, the worst is yet to come. Unless the utility companies who contribute to devastating fires are held accountable to the families who lost lives and homes, there is no incentive for the utilities to change their ways.

If you have been affected by the California wildfires, read more HERE on how we can help. 

Janice F. Mulligan

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[i] Maclachlan, Malcolm. (November 14, 2018) “Legislators to Take Up Fire Liability”  Los Angeles Daily Journal p 1

[ii] California Public Resources Code 4292, 4293 , 4435 General Order No 95(above ground electrical wires) and 165 (inspection cycle)

[iii]  Franck, Thomas (November 15, 2018) “PG&E Has Lost Half its Value This Week as Shareholders Fear utility’s role in California Wildfires”. CNBC     https://www.cnbc.com/2018/11/15/pge-has-lost-half-its-value-as-shareholders-fear-its-role-in-ca-fire.html

[iv] Duffield, Denise (November 12, 2018) “Massive Woolsey Fire Began on Contaminated Santa Susana Field Laboratory, Close to Site of Partial Meltdown” Physicians for Social Responsibility

https://www.psr-la.org/massive-woolsey-fire-began-on-contaminated-santa-susana-field-laboratory-close-to-site-of-partial-meltdown/

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Unfortunately, it has been a record time for fires all over California.  We all worry about the safety of our families, followed by fear over safety of our homes and businesses. When we pay for insurance, we shouldn’t have to also worry about being paid for our losses…or do we?

We help people all over California. If you or your loved ones have been denied lawful payment for your loss by your insurance company, please call us. Insurance companies have a duty to us, their insured policyholders, to act in good faith when responding to claims for settlement to cover our fire losses.

What Do I Do if I Suffer a Fire Loss?

  • IF YOUR LOSS IS FROM A FIRE IN AN AREA WHERE THE GOVERNMENT HAS CALLED A STATE OF EMERGENCY, you are entitled to an advance on living expenses for covered losses, to get you settled immediately after the loss– even before you submit receipts and document expenses.

 

  • Ask your insurer for a list of what living expenses will be covered, and be sure to keep receipts for them.

 

  • You will then be required to submit a claim and proof of loss, and coverage for additional living expenses shall be for a period of up to 24 months or up to your policy limits.[i]

 

  • For any fire loss, call your insurance company as soon as you have a covered loss. Note the date, time of your call and with whom you spoke. Confirm all conversations in writing (an email or letter). Request:
    • A full copy of your insurance policy, including all riders, updates, exclusions and the declarations page.
    • Any information they will require you to file to submit a claim.

 

  • Take pictures of all of your losses and keep proof of costs and replacement costs and all out of pocket expenses, including receipts, estimates for repair or replacement. Note: Your insurance company cannot make unreasonable demands on you for proof of your loss.  [ii]

 

  • Send your insurance company a written claim with proof of losses as soon as possible (and keep a copy of it all!) Important: Your insurer must tell you all deadlines that apply to your claim. [iii] If you miss the deadlines, you may lose all rights against the insurance company to be paid.

 

  • Keep a log of all communications with the insurance company (including the date and time of the communication, whom you spoke to and what was said). Confirm it in an email.

 

  • If you are unsatisfied with the handling of your claim, the amount offered for your losses by the insurer, or if the claim is denied, speak with an experienced attorney immediately. If you do not file suit within one year, you may lose all rights for compensation.

What Does the Law Require of My Insurance Company Once I File a Claim?

 

  • When investigating the claim, your insurer has a duty to diligently search for and consider all evidence that supports coverage of your loss. If your insurance company does not do this, call an experienced California lawyer immediately because you may have a claim for the implied covenant of good faith and fair dealing based on the insurer’s failure or refusal to conduct a proper investigation of your claim.

 

  • California courts have held that to fulfill its obligation to you, the insurance company must give at least as much consideration to your interests as it gives to its own interests. If the insurer seeks to discover only the evidence that defeats your claim, then it is holding its own interest above that of you, its insured, and it will be liable to you for your losses. [iv]

How Much Do I Need to Cooperate With My Insurance Company’s Investigation?

  • You must cooperate with the insurer’s investigation of your claim, but you do not have any duty to cooperate with harassing adjusters or unreasonable requests. If you feel wrongfully pressured, request the adjuster to communicate in writing with all questions they have for you and then promptly respond in writing, or seek an attorney’s advice.

 

How Much Time Does My Insurance Company Have to Investigate My Claim?

  • Your rights are initially protected only once you file a written claim with your insurance company, and then only until they either agree to pay or they deny your claim. Do not wait- file the claim as soon as possible, and if you do not file it within the time allotted, you may lose all rights to be paid for your losses, no matter how bad your losses or how unreasonable the insurer may be in responding to you.[v]

 

  • Once you file a written claim under California law, you are entitled to prompt and timely responses from your insurer.  The company must respond to your communications within 15 calendar days and give you a complete response based on known information. This includes answers to your questions.[vi]

 

  • In California, insurance companies are required to accept or deny your claim within 40 calendar days after receiving proof of your claim.

 

  • If an insurer denies or rejects your claim for fire loss, it must do so in writing and shall provide you a statement listing all of the reasons for such rejection which is then within the insurer’s knowledge.

 

  • If your insurer needs more time to consider your claim, it must give you written notice of the need for additional time, including any additional information the insurer requires in order to make a decision and any reasons for the insurer’s inability to make a determination and provide you with an estimate as to when the determination can be made.

 

  • If your claim is accepted, payment must be made within 30 days from the date settlement was reached.

 

  • In California, insurance companies have a duty to properly investigate your claim for compensation for loss due to fire. If your insurance company acts unreasonably in the investigation of your claim, you may be able to recover money for losses caused by the delay in paying you fully for your losses.

 

  • If your claim is denied or insufficient payment is offered, do not delay in hiring an experienced California lawyer. A lawsuit must be filed within one year of the denial of the payment or you will lose all rights to payment from the insurer.

What Does it Take to Win a Lawsuit Against My Insurance Company?

 

To win your case, a lawyer will have to establish that the insurer acted unreasonably (without a good reason) by failing to properly investigate your claim. What does this mean? To establish this claim against your insurance company, a lawyer will need to prove all of the following:

 

  • You suffered a loss covered under an insurance policy;

 

  • You properly presented a timely claim to your insurance company;

 

  • Your insurance company failed to conduct a full, fair, prompt, and thorough investigation of your claim;

 

  • You were harmed by this denial or delay in paying you fully for your claim; and,

 

  • Your insurer’s failure to properly investigate your claim was a substantial factor in causing you harm.[vii]

If I Hire a Lawyer, What Can I Hope to Recover in My Claim Against the Insurer for Bad Faith Denial of My Claim?

Depending on the facts of your claim, you may be entitled to recover:

  • Full value of your covered losses.
  • Out of pocket expenses reasonably incurred because of the insurer’s unreasonable delay/denial of benefits.
  • Costs of your lawsuit, including attorney’s fees and court costs
  • Damages for anxiety and emotional distress caused by your insurer’s unreasonable delay or denial of benefits.

If you have been denied coverage for your fire loss by your insurer, call an attorney immediately.

MULLIGAN, BANHAM & FINDLEY have successfully battled large corporations and insurance companies seeking to deny just compensation for losses.  Call us or use the contact form on this page today.

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[i]  Cal. Ins. Code Section 2051.5

[ii] Cal. Ins. Code Section 790.03

[iii] Cal. Ins. Code Section 2071 and Cal Code of Regs Section 2695.7

[iv] Mariscal v. Old Republic Life Ins. Co. (1996) 42 Cal.App.4th 1617, 1620, Jordan v. Allstate Ins. Co. (2007) 148

Cal.App.4th 1062, 1066

[v] Cal. Ins. Code Section Section 790.03

[vi] Cal. Code of Regs Section 2695

[vii] CACI No. 2332. Bad Faith (First Party)—Failure to Properly Investigate Claim Judicial Council of California Civil Jury Instructions (2017 edition)

 

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