Early reporting of claims essential to government’s defense

By Jeffrey Tasher, Fort Bliss Claims Office

Persons claiming that the Army, through the alleged negligent acts or omissions of Soldiers or DA civilians working at Fort Bliss, has caused them damage in the form of either personal injury or property loss, or both, must submit their claims through the claims office on post. The negligent act or omission is called a civil wrong or tort and the person who committed it is known as the tortfeasor. In claims office terminology, these incidents or circumstances under which a claims investigation is required prior to the filing of an actual claim are known as Potentially Compensable Events (PCEs). The most common law under which these claims are adjudicated is the statute known as Federal Tort Claims Act. The claims office is responsible for defending against these tort incidents. The early reporting of these incidents to the claims office by the Army personnel involved is critical to the government’s successful defense in future litigation or settlement negotiations. Timely reporting of such an incident is critical since the injured party has two years from the date of the incident to file his/her administrative tort claim, during which time the memories of those Soldiers or other potential government witnesses with knowledge of the incident easily fade, or they transfer to other units and installations or ETS from the Army.

Army Regulation (AR) 27-20, and the Department of the Army Pamphlet 27-162, describe those PCEs requiring an initial investigation by claims office members. These incidents include any instance of personal injury, death, or property loss or damage where the tortfeasor Soldier or DA civilian, while acting within the course and scope of his/her employment, committed the act or omission. In identifying PCEs, claims office members rely heavily upon the written reports prepared by other departments or directorates, such as military police blotters and reports, Criminal Investigation Division reports, Serious Incident Reports (SIRs), post safety office reports, AR 15-6 investigation reports, and commander and inspectors general inquiries. Other sources of information used for identifying PCEs include review of hospital emergency room logs and composite health care system reports, congressional and presidential inquiries, and local newspapers or other media sources.

A frequently occurring PCE that requires early investigation is a motor vehicle accident (MVA) in which a Soldier driving a military or other government vehicle, including unit “fleet rental” vehicles, is allegedly at fault and causes personal injury or property damage to a third party. The commander of the Soldier concerned is required by the claims regulation and its DA Pam to promptly complete the Standard Form 91, Motor Vehicle Accident Report. Among the purposes of the SF 91 is to determine whether or not the Soldier-driver was acting within the course and scope of his/her official duties at the time of the incident. If there is an in-scope determination, then the Army, and not the individual driver who was at fault, will bear liability for the incident. Conversely, if the determination is that the Soldier was not acting within the scope at the time, such as using a government vehicle for personal business, then any third party filing a claim will be directed to seek his/her legal remedy against the driver personally. The unit commander or supervisor of the Soldier-driver must complete all sections of the SF 91, sign the form, have the driver also sign it, and return the completed form to the claims office.

Other incidents that require quick reporting to the claims office are premises liability matters occurring at the post commissary or Exchange, such as slip and falls incidents.  Management of both of these facilities are generally aware of their obligation under internal SOPs to report these types of incidents using a standard accident report form. Other matters requiring reporting are those defined as Serious Incidents (SIs) under AR 190-45. Under that regulation, certain types of incidents classified as either category one or two incidents must be reported through command channels to Headquarters, Department of the Army, such as: (1) bomb or explosive incidents resulting in death, injury of military personnel, or damage to military property; (2) incidents involving material damage that seriously degrade unit operational or training readiness; (3) theft, suspected theft, negligence, or conflict of interest involving government non-appropriated funds or property valued at more than $100,000; or (4) any other incident that the commander determines to be of concern to HQDA based on the nature, gravity, potential for adverse publicity, or potential consequences of the incident. In sum, under the SIR regulation, the rule is: when in doubt, report the incident.

This same rule applies for all PCE incidents. In reporting these incidents, no particular format is necessary.  An email by the commander to the claims office will suffice.  An example of a type of incident that should be immediately reported to the claims office is when any civilian is injured while participating in a command-sponsored training exercise where simulator explosives are used as part of the training. In such a case, the command should immediately inform the claims office in writing of the incident, irrespective of who may be at fault, so that it may promptly commence an investigation of all the facts and circumstances, take the names and addresses of all witnesses, and gather other pertinent information to prepare the government’s defense in anticipation of the filing of a tort claim against the Army. Emphasis is on civilians who may have been injured, as opposed to Soldiers, because certain immunities to Army liability apply to Soldiers bringing claims but not to civilians      

This claims division will provide the administrative claim form (SF 95) to potential claimants seeking to file claims for all tort actions (MVAs, premises slip/falls, or other incidents causing injury or damage) occurring at Fort Bliss, or in the El Paso County and West Texas areas. The SF 95 form may also be obtained on line from the U.S. Department of Justice website http://www.usdoj.gov/civil/forms/sf95.pdf. Persons submitting a SF 95 form should carefully follow the instructions on the back of the form before submission. This is important because the statute of limitations is not stopped or “tolled” unless the form is correctly filed. The claims office is located on the first floor of Building 113 on Pershing Road and can be contacted at (915) 568-5846/6587.