Know your rights when filing wind damage claims

With the approach of the customary windy season in the Las Cruces area, damage to property from strong winds occurring on White Sands Missile Range premises is fairly common. 

Before July 2017, the post claims office considered claims for damage to Soldiers’ personal property from heavy wind under the Personnel Claims Act (PCA) enacted by Congress as a gratuitous payment statute and with no requirement that the claimant show fault by the government in order to recover. However, since then, the centralized Army Center for Personnel Claims Support (CPCS) at Fort Knox, Kentucky, is handling those personnel claims.

For example, a Soldier claiming damage from heavy winds to a privately-owned vehicle parked at the barracks will be referred to the CPCS for adjudication. 

Soldier personnel claims for losses incurred from heavy winds are processed under the “incident to service” standard of the PCA. Since May 2019, however, a new policy went into effect stating that losses incurred from heavy winds or other weather-related phenomena, such as flood, hurricane or earthquake, will not be paid unless a waiver is obtained from the Secretary of the Army. Soldiers may still file these claims with the CPCS, but they will need to request this waiver for the claim to be considered for payment. 

Soldiers are therefore encouraged to purchase private insurance to cover wind damage or other weather-related losses to their personal property.

When a wind damage claim cannot be considered for payment under the PCA because the party is not an eligible claimant (i.e., not a Soldier) or the damage is not incurred incident to service, then the claim will next be evaluated as a tort claim. Tort claims are filed with and adjudicated by the White Sands Missile Range Claims Office. 

A tort claim, in general, may subject the government to liability when the negligent act or omission of an Army employee, occurring within the course and scope of that person’s employment, causes damage to the person or property of another. In cases of property damage, the tort claimant property owner may be either a Soldier or civilian. Typical tort damage claims seen at this installation are damage to POVs from wind-driven objects propelled into the vehicle from unsecured post entry gates, runaway Commissary or PX shopping carts, or other debris blown into the vehicle, with the allegation that the Army as premises owner, acted negligently in causing or allowing the damage to occur.

The general principle of tort law is that a premises owner is not responsible for damage to another person’s property occurring on the premises where the damage was caused by the wind, rain, hail, snow, or other Acts of God. As a matter of tort law, applicable to the installation, the owner is only liable where the damage was foreseeable and there is a showing of independent acts of owner negligence, such as failure to secure the object that actually caused the damage (e.g., unsecured gate or shopping cart) under circumstances where it was foreseeable that the failure to take preventive measures would result in the damage sustained. 

For example, if the post military police, during the months of heavy winds (usually March and April) fail to secure an entry or exit gate, which swings open and strikes a POV, then it is foreseeable that this failure will result in property damage and such incident will probably be payable as a tort claim. 

The issue of damage to POVs from runaway shopping carts and the compensability of such claims is handled under this same general analysis, but with an additional inquiry of who actually was responsible for the operation or movement of the cart at the time of the incident. The government by statute is not responsible under tort law for the negligent acts or omissions of its contractors, those hired by the contractor, or persons known as “licensees” who are granted permission by the installation commander to engage in on-post business. Commissary baggers who take control of the shopping cart in the parking lot while carrying groceries to a patron’s vehicle are not considered government employees. They are considered licensees. 

For example, during a period of heavy winds, a shopping cart handled or under the control of the bagger slips out of his grasp and rolls into a patron’s vehicle, causing damage to the POV. In such cases, unless the patron can point to an independent act of government negligence (such as damage actually caused by a runaway cart ejected by the wind from a cart corral not property secured), the claim is not payable. In the case of damage occurring from heavy winds where the cart simply slipped from the bagger’s grasp or control and struck the claimant’s POV, the claim will be denied and the claimant will be referred to seek his remedy directly from the bagger.

Persons wishing to file a tort property damage claim stemming from a wind-driven incident occurring on the installation may do so by contacting the White Sands Missile Range Claims Office, located on the first floor of Bldg. 124 on Crozier St Room 108, at (575) 678-1263.

Submitted by:
Bobbie J. Salas
Chief, Paralegal Specialist
Office of the Staff Judge Advocate