The world of military claims is exciting and requires knowledge of federal, state, and foreign law. It is dynamic and offers practitioners a far broader view than their civilian counterparts. Knowledge of the law and procedure enables counsel to represent clients ably, resulting in quicker and more satisfactory resolution of such claims.
The office phone rings at the US Army Claims Service office.
Captain (CPT) Jones, this is Colonel (COL) Smith. I have a few questions regarding claims I need your assistance with as my Claims Judge Advocate. Some soldiers in my unit got involved in two automobile collisions.
- Collision 1: One soldier collided a government sedan with a car owned and driven by another soldier on Camp Brown and caused damage to a parked German civilian vehicle. I had directed the first soldier to drive to the train station to transport an official VIP party to the post headquarters.
- Collision 2: In the other incident, a soldier collided with a Polish tourist’s car last Saturday when the soldier was driving to the Edelweiss ski resort for a weekend holiday.
How will these be resolved?
CPT Jones thought for a moment and then replied: Good morning, COL Smith. Let me give you a quick summary of the potential laws and processes involved in claims against the US military.
Potential Laws and Process Involved against the US Military
Your typical military torts can mirror civilian ones, such as medical malpractice, vehicle collisions, and premises liability. Still, they can also arise from operations in a foreign country in battlefield conditions, such as wrongful death, trespass, and more. Claims may allege standard negligence, wrongful action (in some cases), or noncombat activities. In each claim, the claimant must demonstrate, by a preponderance of the evidence, that government negligence or wrongful (in)action caused the claimant’s damages, or for noncombat activities, that the Army action caused the damage. There is a two-year statute of limitations (SOL) to file claims under each US tort statute, though that limit may be affected by an international agreement.
The Federal Tort Claims Act
COL Smith: I had another where the Federal Tort Claims Act (FTCA) applied. Does it apply in this instance?
CPT Jones: The Federal Tort Claims Act (FTCA) uses federal procedural and state substantive law to impose tort liability on the United States for state tort actions. The FTCA requires claimants to file an administrative claim with the federal agency first; if dissatisfied after six months, the claimant may file suit in federal court but must do so no later than six months after final agency action. Any suit will be heard by a judge alone. The statute provides respondeat superior protection for federal employees. However, it only applies in the United States. The claims arising from your soldiers’ situations more likely fall under the Military Claims Act (MCA), which applies worldwide where claimants are US residents.
The Military Claims Act
The MCA provides no judicial remedy; claimants file with the agency that committed the tort, and appeals are to the agency head. General principles of American law rather than that of any particular state apply. The MCA is the sole tort remedy for torts committed by military employees overseas within the scope of their duty.
In your first situation, the MCA applies because the soldier driving the government vehicle was in the scope of his duty. The soldier who owns the vehicle can file a claim with me at the Staff Judge Advocate’s (SJA) office, and I will investigate it like any vehicle collision incident in the United States: reviewing the military police report, statements of all involved and witnesses, and estimates of repair for the damage. This may duplicate some of the unit’s investigations to determine the soldier’s liability for any damage to the government sedan.
If I find by the preponderance of the evidence your soldier was negligent and caused the collision, I can pay the other soldier the cost to repair or replace his vehicle, whichever is less. While the MCA prohibits claims by soldiers for personal injury (because they get free medical care and sick leave), if another person in the car was injured, I can also pay that person’s medical costs, missed work, and noneconomic damages (pain, suffering, disfigurement, and others). If I find the soldier not the cause of the collision, my SJA will deny the claim. The claimant then has 60 days to file an administrative appeal.
Status of Forces Agreement
COL Smith: What about the damage caused to the German civilian’s vehicle?
Claims by non-US residents arising outside the United States are considered under a Status of Forces Agreement (SOFA) or other treaty with claims provisions. Tort claims arising from in-scope actions are adjudicated by the host nation under its law as if the tortfeasor was a member of its military force. In contrast, those arising from non-scope actions are adjudicated by the United States under the Foreign Claims Act (FCA) after considering a nonbinding recommendation from the host nation. Claims adjudicated by the host nation are submitted semiannually to the sending state for reimbursement of a portion of the payment; the host nation pays a portion of all in-scope claims to ensure equal application of the law.
In the incident under discussion, the German civilian owning the other vehicle would file with the German Receiving State Office under the North Atlantic Treaty Organization (NATO) SOFA, which would resolve the case under German law and, if liability is established, request the United States reimburse 75 percent of the damages.
Because the NATO SOFA excludes claims not arising in the scope of duty, such claims will be adjudicated under the FCA as implemented by AR 27-20, Chapter 10. This is done through a Foreign Claims Commission (FCC) of one or three members with limited geographic and monetary jurisdiction. The FCC uses the law where the claim arose for liability and that of the claimant’s domicile for damages. However, the FCA does not allow for interest, costs, or attorney fees.
In your second case, which arose from actions by a soldier on leave and not in the scope of duty, the FCC covering the Edelweiss location will consider the Polish tourist’s claim using German law for liability and Polish law for damages. Thus, the FCC must have a working knowledge of both countries’ laws.
Had the soldier been driving a government vehicle while outside the scope of duty and caused a collision, a claim under the Non-Scope Claims Act (NSCA) can arise. The NSCA applies worldwide but permits payment of no more than $1,000 resulting from the unauthorized use of a government vehicle (e.g., use while intoxicated or on a personal errand) when no other claims statute applies. In that instance, the soldier would remain personally liable for any damages.
When adjudicating claims, we must consider certain jurisdictional defenses. Besides the SOL discussed above, the claims statutes exclude allegations of constitutional violations (e.g., discrimination); acts taken in compliance with regulations or within the discretion of the employee; losses from US postal operations; property detention by law enforcement; defamation, false imprisonment, misrepresentation, and interference with contractual rights; and workers compensation claims for federal employees. The tortfeasor must be an employee of the United States, not a contractor. Claims by military members for personal injury not arising from medical malpractice are also excluded.
COL Smith: Thanks, CPT Jones. You have assured me that any claims arising from these incidents will be resolved fairly, considering the interests of the claimant, the United States, and the soldiers involved. Great legal advice!
CPT Jones hung up the phone, happy that he could advise the COL. In one call, he covered the various tort laws and processes he had learned at the Army Judge Advocate General’s School in Charlottesville, Virginia.