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The phrase measure of damages refers to the method by which the amount of a claimant's recovery will be determined. In FTCA cases, the measure of damages will be determined by the law of the jurisdiction where the incident occurred. For example, the measure of damages for a claim arising out of a tort that occurred in Maryland will be determined by Maryland law. When the local law conflicts with applicable federal law, however, the federal statute will govern. 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
Figure 12-lA.-Sample of Standard Form 95, Claim for Damage, Injury, or Death (front). recovering more than the amount originally claimed. The claimant may amend the claim at anytime before final action on the claim. Once an action is initiated under the FTCA, the plaintiff is limited to the damage amount specified in the claim presented "except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the agency, or upon allegation
. Submitted to a federal agency. The claim is not properly presented until it is submitted to a federal agency. The claim should be submitted to the agency whose activities give rise to the claim. If the claim is submitted to the wrong federal agency, that agency must promptly transfer it to the appropriate one. Although submission to any federal agency will stop the running of the statute of limitations, the 6-month waiting period does not begin until the claim is received by the appropriate agency. That the United States is aware of the potential claim or has actual notice does not relieve the claimant of the requirement of presenting the claim to a federal agency. Failure to formally present the claim can result in the dismissal of an action in court. |
 
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