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.

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.4^th 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)

California penalizes hospitals for preventable errors, through the only program of its kind in the nation.  But the program has failed to make a significant difference in curbing mistakes, the Union Tribune reports.  UT reporter Paul Sisson has some excellent tips on how YOU can protect yourself when seeking medical care:

[View the full article]

“* ALTERNATIVES: Inquire about better alternatives to the procedure you’ve been recommended. Visit choosingwisely.org for information about which treatments may be unnecessary.

* HIGH VOLUME: Choose a hospital, whenever possible, that performs a high volume of the procedure you need to undergo. Studies show such places and physicians tend to have better outcomes for that procedure.

* VACCINATIONS: Verify that your vaccinations are up to date before you’re admitted to the hospital.

* CURRENT MEDICATIONS: Tell your doctor, nurse, pharmacist and anyone else involved in your care about what medications you’re taking. Arrive at the hospital with your full list of drugs and be honest about any other self-medication. That includes dietary supplements, vitamins, herbs and recreational drugs.

* ALLERGIC REACTIONS: List any medications you shouldn’t take because of reasons such as allergic reactions or other known adverse outcomes.

* LABELING: Make sure all medicines you receive in the hospital — including through syringes, tubes, bags and pill bottles — have labels. Don’t be afraid to read these labels to see if they match what your physician prescribed.

* HAND-WASHING: Ask caregivers to wash their hands before they tend to you, if they haven’t done so. Unwashed hands are a main way of spreading infection in hospitals.

* CHECKLISTS: Find out whether your surgeon uses a checklist for your operation. Research shows that such checklists, even simple ones that include steps for preventing infection, can significantly lessen the error rate.

* SURGERY SITE: Confirm with nurses, imaging technicians, anesthesiologists and your doctor that they have correctly identified the part of your body targeted for a procedure. For example, all of your caregivers should agree on which kidney, knee or arm is slated for surgery. One common step is for the surgeon to sign his/her name on the area targeted for surgery.

* CATHETERS: Request an update each day on when your central-line or urinary catheter can be removed. Studies show that catheters, a prime source of infection, are often left in place long after they’re no longer needed.

* BEFORE YOU LEAVE: Go over all medication instructions before leaving the hospital.

* ASK AWAY: Ask as many questions as you need. If you don’t understand something your caregivers are about to do, speak up. Doctors, nurses and others should take action based on your consent.”

While you are doing your final holiday shopping, of course remember the admonition Caveat Emptor – buyer beware.  But, even the most careful shopper can be fooled by hidden costs, false product claims, false pricing, misrepresentations, and deceptive come-ons.  And, the customer can get dragged into a momentum to purchase — which is often the point of the retailer’s strategy.   The law may now protect the buyer, even if the retailer throws some fine print under the buyer’s nose moments before the sale or, once she is “hooked” to buy, reveals something new about the product or service that is not as portrayed in ads.

In a new California case, Veera v. Banana Republic, LLC, out of the Second District California Appellate Court, Dec. 15, 2016, the court acknowledges in the context of consumer class actions that deceptive luring of customers through misleading ads by retailers can cause reliance and damage, and may be the basis for a consumer fraud case, even when the falsity of the ads is revealed to the customer before money changes hands.   In this case, clothing retailer Banana Republic advertised on store window signs that items in the store were 40% off.   Class members were drawn inside, tried on items, waited in sometimes long lines, and, when at the cash register, were told the items were not on sale.

The court noted the danger that consumers rely on deceptive advertising to decide to buy merchandise.  Then, when the deception is revealed, the consumer has now invested in the decision to buy and is swept up in the “momentum of events.”  In this case, they had spent time and energy and made purchases against their better judgment sometimes due to embarrassment caused by the lines behind them, or the desire to avoid a complete waste of effort.

In a change of course from other earlier cases where the purchaser was not allowed to recover when the truth of the false ad was revealed before he or she consummated the purchase, the Veera case recognized that a result like that could be at odds with the intent of the law.  California consumer legislation was meant to combat “bait and switch” and misrepresentations that deceived consumers.  The Veera court acknowledged that the pressure of events can be brought to bear on plaintiffs’ judgment, and plays a substantial role in leading them to purchase items, even though they may learn certain facts do not apply before they pay.  The court held there was a at least a triable issue of whether their reliance on the misleading ad was a cause, though not the only cause, of the consumers’ harm.

So, thanks to consumer protection laws:   Caveat Venditor – let the seller beware.   Happy Shopping.

In an article published August 19, 2016, the LA Times reports on the proliferation of “stem cell clinics” in America. The Times finds that the treatments – which generally consist of injecting patients with stem cells drawn from their own body fat – are expensive and unproven. The concern is that these treatments are marketed with heavy-handed tactics by some clinics to the most vulnerable in our society, those with degenerative, disabling or incurable diseases.  Clinics promise treatment or cures for patients’ ailments with no proof that the treatment is safe or effective, no FDA approval, and a price tag in the thousands, or tens of thousands of dollars.

The article quotes Mulligan Law founding partner, Jan Mulligan, on the firm’s current class action investigation into these clinics:

“Stem cell scientists include the best and the brightest doing great work, and I admire them…. At the other end of the scale, there’s snake oil.”

The article also draws from a recent “stem cell tourism” study by UC Davis stem cell scientist Paul Knoepfler, and bioethicist Leigh Turner of the University of Minnesota. Their study found 570 U.S. clinics now marketing these unproven stem cell interventions, with “hot spots” in Southern California, Phoenix, New York, San Antonio and Austin, Texas.

See the full LA Times article here.

Our firm continues to investigate this important issue, including claims of false advertising, violations of consumer protection statutes, fraud and misrepresentation by stem cell clinics.  If you feel you were harmed or misled by a stem cell clinic in California, please contact us using the button at the bottom of this page, or call 619-238-8700.  See this page for more information.