Claims against the Government

What is Sovereign Immunity?

Under the legal doctrine of sovereign immunity, the government cannot be sued without its permission. Sovereign immunity protects the federal government, state and local governments, and government agencies from personal injury lawsuits. However, most governments (including the federal government) have passed laws that waive their sovereign immunity under certain circumstances. Therefore, the doctrine of sovereign immunity does not grant absolute immunity from personal injury lawsuits. The federal government, state governments, and most local governments can be sued in personal injury actions, but the lawsuit and the person filing the lawsuit (i.e., the “plaintiff”) must meet certain legal requirements.

A person who wishes to file a personal injury action against the federal government must comply with the requirements of the Federal Tort Claims Act. A person who wishes to file a personal injury action against a state or local government must comply with applicable state or local immunity laws. Although such immunity laws vary by state and locality, they usually have the following characteristics:

1. they limit the types of lawsuits that can be filed against the government (the Federal Tort Claims Act and all of the states permit most types of personal injury actions); and
   
2. they require the plaintiff to file a “notice of claim” with the government within a certain period of time before a lawsuit is filed.

What is a Notice of Claim?

A “notice of claim” is a written notice of a plaintiff’s claim against the government. The purpose of the notice is to notify the government of the nature of the legal claim against it. The notice must be filed with the appropriate government agency. For example, if a plaintiff plans to file a personal injury action against the U.S. Department of Transportation, he or she must file the notice with the U.S. Department of Transportation.

The notice of claim is a prerequisite to a personal injury action against the government. If a timely claim has not been filed with the appropriate government agency, a court will not allow a personal injury action against the government.

When Nust a Notice of Claim be Filed?

Under the Federal Tort Claims Act, a notice of claim must be filed within two years after the injury occurs. The time period for filing claims against state and local governments varies according to the applicable immunity laws.

If a notice of claim is not filed within the prescribed time period, no personal injury action may be filed.

What Happens after a Notice of Claim is Filed?

The government will accept the claim, deny the claim, or fail to act on the claim. If the government denies the claim or fails to act on the claim, the plaintiff may file a personal injury action. The action must be filed within a certain period of time after the denial of a claim. For example, under the Federal Tort Claims Act, an action must be filed within six months after the claim is denied.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.