Custom Search
|
|
 
|
||
|
Like the FTCA, the Military Claims Act, 10 U.S.C. 2733 (1982) (MCA), compensates for personal injury, death, or property damage caused by activities of the federal government. MCA claims are limited to two general types: (1) injury, death, or property damage caused by military personnel or civilian employees acting within the scope of their employment and (2) injury, death, or property damage caused by noncombatant activities of a peculiarly military nature. The MCA provides compensation for certain claims that are not payable under the FTCA. First, its application is worldwide. Also, the claimant has no right to sue the government if his or her MCA claim is denied by the adjudicating authority. Finally, unlike the FTCA that creates statutory rights for claimants, the MCA is operative only "under such regulations as the Secretary of a military department may prescribe." Each service Secretary has issued regulations stating under what circumstances claims will be paid by his or her department under the MCA. A claimant has no greater rights than what is prescribed by each service's regulations. SCOPE OF LIABILITY The MCA is limited to two rather broad categories of claims: those arising from the acts of military employees in the scope of their employment and those incident to noncombatant activities of a peculiarly military nature. The Department of the Navy is liable under the MCA for injury, death, or property damage caused by its military members or civilian employees acting within the scope of their employment. Although MCA regulatations do not specifically require the claimant to establish governmental negligence to be able to recover damages under the MCA, OJAG has opined informally that the term caused by means negligently caused by. The concept, then, of causation under the MCA is the same as that required under the FTCA. Also, the scope of employment concept under the MCA is identical to that required under the FTCA claims. The Department of the Navy also is liable under the MCA for injury, death, or property damage incident to noncombat activities of a peculiarly military nature. Examples include claims such as those arising out of maneuvers, artillery and bombing exercises, naval exhibitions, aircraft and missile operations, and sonic booms. Under this second theory of MCA liability, the claims need not show that the activities were belligerently conducted. In fact, the claimant's losses need not be traced to the conduct of any specific federal employees. The scope of employment concept does not apply. The MCA applies worldwide. If a claim arising in a foreign country is cognizable under the FCA, however, it will be processed under that statute and not as an MCA claim. If the claim is denied, the claimant does not have the right to sue. EXCLUSIONS FROM LIABILITY As with FTCA claims, there are three general categories of exclusions from liability under the MCA: certain exempted activities; claims cognizable under other claims statutes; and certain excluded classes of Claimants. Exempted Governmental Activities A claim will not be payable under the MCA if it involves an exempted governmental activity. The most frequent examples include the following: Combat activities or enemy action Certain postal activities Property damage claims based on alleged contract violations by the government Claims Cognizable Under Other Claims Statutes Claims that are governed by one of the following claims statutes are not payable under the MCA: l Federal Tort Claims Act o Military Personnel and Civilian Employees' Claims Act @ Certain admiralty claims Excluded Classes of Claimants Military members and civilian employees of the Department of the Navy may not recover under the MCA for personal injury or death occurring incident to service or employment. Compensation may be recovered for property damage under the MCA if it is not covered by another claims statute. As a practical matter, however, when a military member suffers property damage incident to service, it will usually be compensated under the Military Personnel and Civilian Employees' Claims Act. Nationals of an ally of a country at war with the United States, unless the individual claimant is determined to be friendly to the United States, are excluded from MCA coverage. Generally, a claim will not be paid under the MCA if the injury, death, or personal property damage was caused in whole or in part by the claimant's own negligence or wrongful acts. This contributory negligence is a complete bar to tort recovery in many states. However, if the law of the jurisdiction where the claim arose would allow recovery in a lawsuit, even though the claimant was negligent, the MCA claim can be paid. Under such circumstances, the negligent claimant will only recover that amount that local law would permit a negligent claimant to recover in its courts. This partial recovery concept is known as the comparative negligence doctrine. The rules for determining the amount of a claimant's recovery under the MCA arc similar to those governing other claims. The amount of compensation for property damaged is based on the estimated cost of restoring the property to its condition before the incident. If the property cannot be repaired economically, the measure of damage will be the replacement cost of the property minus any salvage value. The claimant also may recover compensation for loss of use of the property. Compensation under the MCA for personal injury or death will include items such as medical expenses, lost earnings, diminished earning capacity, pain and suffering, and permanent disability. Usually, local standards are applied. The following amounts are excluded from a claimant's MCA recovery: Interest Cost of preparing the claim Attorney's fees Compensation for inconvenience to the claimant The Department of the Navy may pay MCA claims up to $ l00,000. If the Secretary of the Navy considers that a claim in excess of $100,000 is meritorious, a partial payment of $100,000 may be made with the balance referred to the General Accounting Office for payment from appropriations provided therefore. STATUTE OF LIMITATIONS A claim under the MCA may not be paid unless it is presented in writing within 2 years after it accrues. The statute of limitations may he suspended during time of armed conflict. The rules governing presentment of the claim are substantially similar to those under the FTCA. PROCEDURES The investigation and adjudication procedures for MCA claims are substantially similar to those for FTCA claims. In fact, many claims paid under the MCA were initially presented as FTCA claims. The significant procedural differences under MCA are as follows: . Advance payments. In limited circumstances, the Secretary of the Navy, or a designee, is authorized to make an advance payment not to exceed $1,000 to, or on behalf of, any person suffering injury, death, or property damage resulting from an incident covered by the MCA or the FCA. This payment may be made before the claimant presents a written claim. Advance payments may be made only when the claimant or the claimant's family is in immediate need of funds for necessities (shelter, clothing, medical care, or burial expenses). Other resources must not be available, An advance payment is not an admission of government liability. The amount of the advance payment will be deducted from any settlement subsequently authorized. . Dollar limits on adjudicating authorities. FTCA adjudicating authorities also adjudicate MCA claims. Dollar limitations are set forth in par. 9, enclosure (2) of JAGINST 5890.1. All adjudicating authorities may make advance payments. . Claimant's right to appeal. There is no right to sue under the MCA after an administrative denial of an MCA claim. If an MCA claim is denied, in whole or in part, the claimant may appeal to JAG within 30 days after the denial. A claim is correct in form if it constitutes written notification of an incident, signed by the claimant or a duly authorized agent or legal representative, with a claim for money damages in a sum certain. A Standard Form 95 is preferred. A claim should be substantiated. A claim must be substantiated as required by JAGINST 5890.1 in order to be paid. A proper claim maybe amended by the claimant at any time before final denial or payment of the claim. An amendment is submitted in writing and signed by the claimant or a duly authorized agent or legal representative. Payment Claims approved for payment are sent to such disbursing officers as are designated by the Comptroller of the Navy for payment from appropriations designated for that purpose. Final Disposition The adjudicating authority notifies the claimant, in writing, of the action taken on the claim. A final denial, in whole or in part, of any MCA claim will be in writing and sent to the claimant, or his or her attorney or legal representative, by certified or registered mail, return receipt requested. The notification of denial will include a statement of the reason(s) for denial and that the claimant may appeal. The notification will also inform the claimant of the following: l The title of the appellate authority who will act on the appeal and that the appeal will be addressed to the adjudicating authority who last acted on the claim. c No form is prescribed for the appeal, but the grounds for appeal should be set forth fully. The appeal must be submitted within 30 days of receipt by the claimant of notice of action on the claim. Appeal A claim that is disapproved in whole or in part may be appealed by the claimant at any time within 30 days after receipt of notification of disapproval. An appeal will be in writing and state the grounds relied upon. An appeal is not an adversary proceeding and a hearing is not authorized; however, the claimant may obtain and submit any additional evidence or written argument for consideration by the appellate authority. Processing of the appeal may be delayed pending further efforts by the adjudicating authority to settle the claim. Where the adjudicating authority does not reach a final agreement on an appealed claim, he or she will send the entire claim file to the next higher settlement authority who is the appellate authority for that claim. The appellate authority will notify the claimant in writing of the determination on appeal; that such determination constitutes the final administrative action on the claim; and there is no right to sue under the MCA. EXAMPLES 1. Facts. A Navy aircraft crashed, utterly demolishing an automobile owned by Mr. Smashed, a civilian. Mr. Smashed has presented an MCA claim for the fair market value of his car. Can he recover? Solution. Yes. This claim falls under the second theory of MCA liability-an incident arising out of noncombat activities of a peculiarly military nature. None of the exclusions from liability apply. This incident does not involve an exempted governmental activity. It is not covered by any other claim statute. The FTCA would not apply because the facts do not indicate any negligence by any federal employee. (If the crash had been caused by the Navy pilot's negligence, it would be compensable under the FTCA.) Mr. Smashed does not belong to an excluded class of claimants. There is no evidence that his actions in any way caused the incident; therefore, Mr. Smashed can recover the value of his car-less any salvage value. 2. Facts. While conducting gunnery exercises aboard USS Shotinthedark, naval personnel miscalculated and accidentally shot a shell into the fleet parking lot. The shell completely destroyed an automobile owned by ENS Noluck who was on duty aboard one of the ships tied up at a nearby pier. ENS Noluck has filed an MCA claim. Is this claim payable under the MCA? Solution. No. Although this incident involved noncombatant activities of a peculiarly military nature and was also caused by naval personnel acting within the scope of employment, the MCA does not apply. A claim that is cognizable under the Military Personnel and Civilian Employees' Claims Act is not payable under the MCA. Because compensation for this motor vehicle loss is available as a personnel claim, it is not payable under the MCA. However, ENS Noluck's recovery will be limited to the $2,000 amount prescribed under the personnel claims regulations and not the greater amount payable under the MCA. Special points. Perhaps you were thinking that, since the Military Personnel and Civilian Employees' Claims Act limits payments for automobile claims to $2,000, the MCA could be used to pay the amount of ENS Noluck's loss that is in excess of the $2,000 limit. No such luck. JAG has interpreted the phrase cognizable under the Military Personnel and Civilian Employees' Claims Act to mean payable under the Military Personnel and Civilian Employees' Claims Act. Accordingly, in this particular situation, the Military Personnel and Civilian Employees' Claims Act is considered to be the exclusive remedy available to pay for the damages to ENS Noluck's automobile. |
 
|
|
|
||
