5/5/87
OPR: Admin/Financial Management
1. Purpose.
A. This chapter prescribes Departmental policies, responsibilities, and procedures for handling claims against the United States under the Federal Tort Claims Act. Such claims involve property losses, property damage, personal injuries and deaths alleged to have resulted from the negligent or wrongful acts or omissions of employees of the Department in the course of their duties.
B. Throughout this chapter, the term "incident" should, except where the context clearly indicates otherwise, be interpreted broadly to refer to any incident, accident or occurrence, which may give rise to a tort claim. Since any incident which results in personal injury or death or injury to or loss of real or private property may give rise to a tort claim, the incident shall be treated as is provided in this chapter. Claims for compensation arising out of injury or death sustained by an employee of the Department while in performance of duty are covered under the Federal Employees' Compensation Act in accordance with SM 370.810.
2. Policy. It is the policy of the Department to promptly and fairly consider all claims of a tortious nature and to settle the meritorious ones as quickly as possible within the statutory period of six months after filing, avoiding suit and expensive and time-consuming litigation to claimants and the Government.
3. Authority. Acts establishing Tort Claims Act Procedures and Implementing Regulations, as amended by the Act of July 18, 1966 (Public Law 89-506, 80 Stat. 306), are listed in 451 DM 1.
4. Applicability. The Federal Tort Claims Act provides a means whereby damages may be awarded as a result of claims against the United States for $$injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of the office or employment under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.'' Generally, a claim must be filed with the appropriate agency within two years after the incident. Recovery for torts may be sought:
A. By submitting claims for administrative determination to the Department. If a determination has not been issued within six months after the claim was filed with the agency out of whose activities the claim arose, claimant may consider a claim administratively denied and may file suit in the appropriate Federal District Court.
B. By filing suit within six months after administrative denial of the claim in a District Court.
5. Responsibilities. All levels of direction and supervision are responsible within their areas of interest for the effective discharge of tort claims. The expeditious handling of tort claims requires cooperation from the claimant, claimant's representatives, the investigators, the Tort Claims Officer, the Solicitor's Office, Department of Justice personnel, and others involved.
A. The Solicitor makes the administrative determination as to the merit of any tort claim presented. This function is delegated to the Solicitor and redelegated to other members of the Solicitor's office. Judicial determination is a function of the Courts.
B. Managers are responsible for the prevention of situations which give rise to tort claims and for the proper investigation and documentation of the facts incident to tort claims. The expenses incurred in the investigation and related activities will be borne by the Division or Office of the employee out of whose activities the claim arose.
C. The Supervisor is responsible for:
(1) Preventive action by (a) taking such steps as are reasonable to prevent situations which give rise to tort claims, (b) proper training and supervision of employees, (c) adequate safety measures, and (d) accident prevention programs.
(2) Proper handling of claims by making necessary reports, thorough and timely investigations, and the documentation of facts incident to claims so that the Government's, the employee's, and the claimant's interests are equally protected.
D. The Tort Claims Officer is responsible for:
(1) Providing staff assistance on tort claims matters;
(2) Assuring the prompt and full investigation of accidents which may result in tort claims against the Government prior to the filing of a claim; and
(3) Documenting the facts incident to tort claims involving the USGS.
E. The Assignment of Tort Claims Officers within the USGS follows:
(1) USGS. Chief, Branch of Financial Management.
(2) Division. Administrative Officer. The Divisions may establish additional Tort Claims Officers for field installations and establish reporting procedures to ensure compliance with this chapter.
6. When an Incident Occurs. All incidents involving injury to person and damage or destruction to private property shall be reported and investigated as soon as possible after they occur.
A. Reporting Incidents. Departmental requirements and procedures for reporting on accidents (451 DM 1) shall be followed. Employees shall immediately notify their supervisors of all incidents or accidents involving private persons or property which may give rise to a claim against or for the Government. The supervisors, in turn, will immediately notify the appropriate Tort Claims Officer. Standard Form (SF) 91 (Operator's Report of Motor Vehicle Accident) and 91A (Investigative Report of Motor Vehicle Accident--Block 28 shall not be completed) and Optional Form (OF) 26 (Data Bearing Upon Scope of Employment of Motor Vehicle Operator) must be completed in all motor vehicle accidents. Where a tort claim has been presented or is anticipated, the signed OF 26 is to be sent to the Division Tort Claims Officer or appropriate Regional Solicitor. DI-134 (Report of Accident/Incident) shall be sent to the USGS Safety Officer in the manner now prescribed. The following additional guidelines apply to incidents which are or may become the subject of a tort claim:
(1) In the event of death, actual or potential serious personal injury or substantial property damage, the Division Tort Claims Officer; the Associate Solicitor, Division of Energy and Resources; the nearest Solicitor's Office; and the appropriate Tort Claims Officer shall be notified. The Division Tort Claims Officer and the Associate Solicitor, Division of Energy and Resources will be notified immediately by telegram of any incident involving death, serious personal injury, or substantial property damage.
(2) Copies of all accident reports shall be furnished without delay to the Division Tort Claims Officer.
(3) Copies of the basic accident reports involving death, serious personal injury, and substantial property damage shall be furnished to the Division Tort Claims Officer, the Associate Solicitor, Division of Energy and Resources and to the appropriate Regional or Field Solicitor no later than 10 days after the incident.
(4) In reporting an accident, the employees should state the facts to the best of their knowledge. They should not state any conclusions as to fault or responsibility. The employees should report the accident only to their insurance company, authorized representatives of the Government, and police officers investigating the accident. They should also file any report required by law.
(5) If employees involved in such accidents carry liability insurance which may cover them, or the Government, they shall report the accident to their insurance company. They shall also furnish the Division Tort Claims Officer or appropriate Regional Solicitor a copy of their insurance policy together with applicable endorsements and amendments and copies of correspondence from their insurance company regarding its liability under the insurance policy.
(6) Employees shall notify their supervisors immediately whenever a lawsuit is threatened or filed in Court against them for torts arising out of their Government employment (SM 451.4).
(7) A report of an accident involving GSA vehicles, SF 91 and SF 94 (Statement of Witness) will also be sent immediately to the GSA motorpool from which the vehicle was obtained (FPMR 101-39.8). The transmittal memorandum should contain a statement by the reviewing official as to determination of negligence or misconduct on the part of the operator. This is most important as a determination of the lack of negligence or misconduct, validly based on the events leading up to the accident, will relieve the USGS from reimbursing the GSA for the cost of repairing the damaged vehicle (SM 410).
(8) All accidents involving misconduct, negligence, serious irregularities, or irresponsible performance on the part of personnel involved must be reported promptly to the Survey Personnel Officer, Mail Stop 215, Reston, Virginia 22092. The Survey Personnel Officer, in consultation with the Office of the Inspector General, will determine whether the matter is reportable for Investigation by the Office of the Inspector General, and will report the incident officially if appropriate. The Survey Personnel Officer will evaluate the need for personnel action and will consult with servicing personnel and management officials regarding recommendations for personnel action to be taken.
B. Investigating Accidents.
(1) Investigations by Supervisors and Safety Officers. In investigating accidents which have resulted or may result in tort claims, supervisors will consult with the Division Tort Claims Officer to assure that all appropriate steps have been taken to document fully the case for tort claims purposes (485 DM 4.6). Copies of the investigative report by supervisors, safety officers, investigative police officers, and others of such accidents will be furnished to the Division Tort Claims Officer for information and use. DI-134 will be sent to the USGS Safety Officer in the manner now prescribed in USGS Safety Handbook Section 2.1, Accident Reporting--General.
(2) Investigation by Office of the Inspector General. In accordance with provisions outlined in SM 359.2, the Survey Personnel Officer reports accidents involving misconduct or serious irregularities to the Office of the Inspector General, and that office determines whether an investigation will be conducted or whether the matter will be remanded to the Bureau for administrative action. No personnel action may be taken on such incidents until the case has been remanded to the Survey Personnel Officer and returned to appropriate management levels for action. Any Report of Investigation made by the Office of the Inspector General is the property of that office, which determines its uses.
(3) Investigation by Tort Claims Officer. It is necessary that an investigation be made of all accidents in order that all claims may be properly evaluated. The extent of this investigation will rest on the exercise of good judgment with emphasis on thoroughness. The complete investigative file will be forwarded to the appropriate Solicitor's Office no later than 30 days after the incident.
7. Duties of the Tort Claims Officer.
A. Every investigation will be conducted by a Tort Claims Officer, who will be responsible for the prompt investigation of every incident while witnesses are available and before damage has been repaired to secure all relevant information (SM 451.1.2). In remote areas or when it is not feasible to have the Tort Claims Officer on the scene of the accident while witnesses are available, the operator of the vehicle (if physically able to do so) will obtain the name and address of each witness and, if possible, obtain a signed SF 94.
B. The Tort Claims Officer will:
(1) Conduct an investigation in a fair and impartial manner, covering all phases of the incident and giving consideration to its bearing on possible claims against or in favor of the Government to the end that a comprehensive, accurate, and unbiased factual report of the incident may be made available in order that all claims may be properly evaluated.
(2) Find, interview, and secure signed statements from all competent witnesses on facts pertinent to the incident. Such witnesses are drivers and passengers of all vehicles involved, ambulance attendants, tow-truck operators, doctors, police officers, and any other eyewitnesses. Witnesses should be interviewed by the Tort Claims Officer at the earliest opportunity. Statements from witnesses should be obtained in writing with signatures if possible. The interests of the United States may be seriously prejudiced if the Tort Claims Officer fails to obtain such statements before witnesses lose their clear recollection or become confused when questioned by persons with adverse interests.
(3) Inspect the property damage and interview injured persons, or their representatives, personally; if the personal inspection and interview is not conducted, state the reason why not.
(4) Ascertain the nature, extent, and amount of damage and obtain all pertinent repair, medical, hospital, and associated bills (or estimates) necessary to the proper adjudication of a claim against the Government which may arise from the incident.
(5) Obtain from the proper maintenance office the inspection reports of the Government-owned vehicle that were conducted prior to and subsequent to the accident. This is accomplished in all cases in which the reports appear pertinent for the determination of liability.
(6) Reduce to writing and incorporate into a unified investigative report all pertinent testimony, exhibits, and any other evidence taken or considered.
(7) Furnish the proper claim forms to any person who inquires concerning the procedure for making claims against the Government as a result of an accident or incident and advise such person where the claim should be filed (28 CFR 14).
(8) Submit the complete investigative report to the appropriate Solicitor's Office as promptly as the circumstances permit, but no later than 30 days after the occurrence of the accident or incident. In the case of an incident involving death, serious personal injury, or substantial property damage, submit immediately a preliminary report, containing such information as is available, to the Associate Solicitor, Division of Energy and Resources, and to the appropriate Regional or Field Solicitor, with a follow-up report in 10 days. Where not all of the required information is immediately available (as in an accident resulting in personal injuries requiring extended periods of hospitalization or medical care), the investigative report shall be submitted promptly, containing all information available at the time of submission. The report shall be followed by a supplementary report, submitted as soon as previously omitted information becomes available.
8. Contents of the Investigative Report.
A. A written report of investigation will be made in each incident or accident. For motor vehicle accidents, SF 91 and 91A (Block 26 shall not be completed) and OF 26 must be used. Form DI-134 should be submitted for safety management use. Accidents involving personal property (but not motor vehicles) should be covered by the use of SF 92 (Supervisor s Report of Accident--Other than Motor Vehicle).
B. The report shall be complete in every significant detail and will include particularly such of the following information as is pertinent:
(1) Date, time, and exact place the accident or incident occurred.
(2) A concise but complete statement of the circumstances of the accident or incident. Reference should be made to pertinent physical facts observed and to any material statements, admissions, or declarations against interest by any person involved.
(3) A statement as to whether the driver is the sole owner of the damaged property and, if not, the name and address of the owner or part owners.
(4) Names and addresses of employees involved as participants or witnesses.
(5) Names and addresses of all eyewitnesses, including the driver and the occupants of each vehicle.
(6) Accurate description of Government property involved, and nature and amount of damage, if any. If Government property was not damaged, that fact should be stated.
(7) Accurate description of all privately owned property involved, nature and amount of damage, if any, and the names and addresses of the owners.
(8) A statement whether any person involved violated any Federal or State statute, local ordinance, or Department regulation; if so, in what respect. The statute, ordinance, or regulation should be set out in full.
(9) A statement whether a police investigation was made. If available, a copy of the police report of investigation will be included.
(10) A statement whether any arrests were made or charges preferred, and the result of any trial or proceeding, including names of all witnesses, and the substance of their testimony. When available, a copy of the transcript must be secured.
(11) Newspaper accounts, weather reports, plats, photographs of the site and of the vehicles should be furnished.
(12) As many exhibits or enclosures as are pertinent and appear necessary or useful for purposes of claim determination, shall be obtained during the course of the investigation and shall be attached to the investigative report. The enclosures shall be numbered consecutively and shall be listed numerically in the investigative report.
9. Evidence and Information to be Submitted by Claimant.
A. In support of a claim based on death, the claimant may be required to submit the following evidence and information:
(1) An authenticated death certificate or other competent evidence showing cause of death, date of death, and age of the decedent.
(2) The decedent's employment or occupation at time of death, including the decedent's monthly or yearly salary or earnings (if any) and the duration of the decedent's last employment or occupation.
(3) Full names, addresses, birth dates, kinship, and marital status of the decedent's survivors, including identification of those survivors who were dependent for support upon the decedent at the time of death.
(4) Degree of support afforded by the decedent to each survivor dependent upon the decedent for support at the time of death.
(5) Decedent's general physical and mental condition before death.
(6) Itemized bills for medical and burial expenses incurred by reason of the incident causing death, or itemized receipts of payment for such expenses.
(7) If damages for pain and suffering prior to death are claimed, a physician s detailed statement specifying the injuries suffered, duration of pain and suffering, any drugs administered for pain, and the decedent's physical condition in the interval between injury and death.
(8) Any other evidence or information which may have a bearing on either the responsibility of the United States for the death or the damages claimed.
B. In support of a claim for personal injury, including pain and suffering, the claimant may be required to submit the following evidence and information:
(1) A written report by the claimant's attending physician or dentist showing the nature and extent of the injury, nature and extent of treatment, any degree of temporary or permanent disability, the prognosis, period of hospitalization, and any diminished earning capacity.
(2) Itemized and signed bills for medical, dental, hospital expenses incurred, or itemized receipts of payment for such expenses.
(3) If the prognosis reveals the necessity for future treatment, a statement of expected expenses for such treatment.
(4) When a claim is made for loss of time from work or loss of earnings, a written statement from the employer showing actual time lost from employment, the number of hours usually worked per week, the amount of wages or salary which the employee was earning at the time of the accident, and whether the employee was a full-time or part-time employee.
(5) When claim is made for loss of income and the claimant is self-employed, documentary evidence showing the amount of claimant's earnings during the preceding two years.
(6) Any other evidence which would have a bearing on the award.
(7) In addition, the claimant may be required to submit to a physical examination by a physician selected by the Department of the Interior.
C. In support of a claim for damage to or loss of property, real or personal, the claimant may be required to submit the following evidence and information:
(1) Proof of ownership.
(2) A detailed statement of the amount claimed for each item of property.
(3) An itemized receipt of payment for necessary repairs to each item of property.
(4) A statement listing date of purchase, purchase price and salvage value, where repair is not economical.
(5) Any other evidence which would have a bearing on the award.
10. Who May File.
A. A claim for injury to or loss of property may be presented by the owner of the property, or owner's duly authorized agent or legal representative.
B. A claim for personal injury may be presented by the injured person or that person's duly authorized agent or legal representative.
C. A claim based on death may be presented by the executor or administrator of the decedent's estate, or by any other person legally entitled to assert such a claim in accordance with applicable State law.
D. A claim for loss wholly compensated by an insurer with the rights of a subrogee may be presented by the insurer. A claim for loss partially compensated by an insurer with the rights of a subrogee may be presented by the parties individually as their respective interests appear, or jointly.
E. A claim presented by an agent or legal representative shall be presented in the name of the claimant, be signed by the agent or legal representative, show the title or legal capacity of the person signing, and be accompanied by evidence of authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative.
11. When Presented.
A. A claim shall be deemed to have been presented when the USGS or Office concerned receives from a claimant, duly authorized agent or legal representative, an executed SF 95 (Claim for Damage or Injury), or a written notification of an incident, together with a claim for money damages regarding damage to or loss of property or personal injury, or death.
B. A claim presented to the wrong Federal agency shall be transferred forthwith to the appropriate agency.
12. When Received.
A. The claimant's envelope shall be retained, and the claim form shall be time and date stamped, recorded, and forwarded immediately to the appropriate Tort Claims Officer.
B. The Tort Claims Officer shall send the original claim form no later than 24 hours after receipt, together with all the original papers, to the appropriate Solicitor's Office in the geographical area in which the accident or incident occurred (SM 450.1). If the claim is not forwarded within this time, a memorandum stating the reason for delay must be submitted.
13. Action by Regional or Field Solicitor.
A. Upon receipt of the claim and the USGS or Office investigative report, the appropriate Solicitor's Office shall make a determination of the claim. The determination may either deny, compromise, or pay the claim in full. If the record discloses that the employee involved had liability insurance, a provision of which might indemnify the Government, the attorney who makes the determination should take such action as is deemed appropriate.
B. Notice of disposition of claims shall be in writing and sent to the claimant or claimant's attorney or legal representative. In compromise and denials, notice shall be sent by certified or registered mail, return receipt requested. The notice shall include a statement that, if dissatisfied, the claimant is entitled to institute suit within a period of six months from the date of the mailing of the notice of the determination.
C. On receipt of an appeal, the Regional or Field Solicitor shall forward it together with the complete file to the Associate Solicitor, Division of Energy and Resources for final determination. A copy of the appeal shall be sent to the USGS or appropriate Office.
D. The Associate Solicitor's or Assistant Solicitor's decision on the appeal will be sent directly to the claimant or the claimant's attorney with a copy to the appropriate Regional or Field Solicitor and to the USGS or Office concerned.
E. If any award, compromise or settlement is made for $2,500 or less, the Regional or Field Solicitor will send a signed copy of the administrative determination together with an original payment voucher (SF 1145, Voucher for Payment under Federal Tort Claims Act) by certified or registered mail, return receipt requested. When claimant is represented by an attorney, the voucher for payment shall designate both the claimant and the claimant's attorney as payees. The signed voucher constitutes the claimant's full release of the claim.
(1) When a signed payment voucher is received, the appropriate Solicitor's Office shall sign the original voucher in the space designated $$Head of Federal Agency or Authorized Designee,'' and forward it with two copies, the original determination and the complete claim file to the USGS or Office concerned for payment out of available appropriations. When represented by an attorney, the check shall be delivered to the attorney whose address appears on the voucher.
(2) A carbon or confirmed copy of the payment voucher together with a copy of the administrative determination shall be forwarded to the Associate Solicitor, Division of Energy and Resources.
F. If any award, compromise or settlement is made in excess of $2,500 and not more than $100,000, the appropriate Regional or Field Solicitor will forward the signed SF 1145 with two copies and the original of the determination and two copies with a covering letter, stating that the designee has delegated authority to make the award under the Act to the Claims Division, General Accounting Office. Payment of an award, compromise or settlement in excess of $100,000 shall be obtained by forwarding SF 1145 to the Bureau of Government Financial Operations, Department of the Treasury.
G. The Regional or Field Solicitor will hold the claim file, including the original of the administrative determination, until either the claimant's appeal time has run out (30 days), or in the event of an award, receipt of the claimant's release. The Regional or Field Solicitor then will return the complete file to the USGS or Office which submitted the claim for determination.
14. Final Denial and Reconsideration.
A. Final denial of an administrative claim shall be in writing and sent to the claimant, claimant's attorney, or legal representative by certified or registered mail, return receipt requested. Notification shall include a statement that, if the claimant is dissatisfied with the action, suit may be instituted within six months from the date of mailing of the notification of the determination or the claimant may file suit in an appropriate U.S. District Court within six months of the date of mailing of the notification. The initial decision is final unless reconsideration is requested.
B. Upon timely filing of a request for reconsideration, the agency shall have six months from the date of filing in which to make a final disposition of the claim, and the claimant's option under 28 U.S.C. 2675(a) shall not accrue until final action on the request for reconsideration. Final action on a request for reconsideration shall be in writing and sent to the claimant, claimant's attorney or legal representative by certified or registered mail. This notification may include a statement of the reasons for the denial and shall include a statement that if dissatisfied with the agency action, the claimant may file suit in an appropriate U.S. District Court not later than six months after the date of mailing of the notification of the denial.
15. Action on Approved Claims in an Amount of $2,500 or Less.
A. Any award, compromise or settlement in an amount of $2,500 or less, shall be paid by the USGS or Office concerned out of available appropriations (28 U.S.C. 2672).
B. When claimant is represented by an attorney, the voucher for payment shall designate both the claimant and the attorney as payees. The check shall be delivered to the attorney whose address appears on the voucher.
16. Action on Approved Claims in Excess of $2,500.
A. Payment of awards in excess of $2,500, and not more than $100,000, will be obtained by forwarding SF 1145 to the Claims Division, General Accounting Office.
B. Payment of awards in excess of $100,000, will be obtained by forwarding SF 1145 to the Bureau of Government Financial Operations, Department of the Treasury.
C. When an award is in excess of $25,000, SF 1145 must be accompanied by evidence that the award has been approved by the Attorney General or his/her designee. This may be effected by consulting the Torts Section, Civil Division, Department of Justice.
D. SF 1145 shall be executed by the claimant or it shall be accompanied by either a claims settlement agreement or a SF 95, executed by the claimant.
E. When a claimant is represented by an attorney, the voucher for payment shall designate both the claimant and claimant's attorney as payees. The check shall be delivered to the attorney, whose address shall appear on the voucher.
17. Civil Action Instituted Upon a Tort Claim Against the United States.
A. Upon institution of a suit, the assigned Associate, Regional, or Field Solicitor shall notify the USGS or Office concerned and request the original and two copies of the investigative report. In addition, the Associate Solicitor, Division of General Law should be notified of the filing of the suit.
B. The appropriate Associate, Regional, or Field Solicitor shall in turn forward a copy of the investigative report to the Attorney General and the original copy to the United States Attorney.
C. The appropriate Associate, Regional, or Field Solicitor will notify the USGS or Office involved and the Associate Solicitor, Division of General Law of the final disposition of the litigation.