Subrogation Against the Government: Act Fast or You Could Lose Your Rights
You probably know that the statute of limitations to file a personal-injury civil lawsuit in California is two years. But what happens when the third-party tortfeasor is a government employee? Can’t they be sued just like everyone else? The answer is no, and if you sleep on your rights you may end up losing them.
Traditionally, sovereign immunity has prevented the government and its employees from being sued in a civil court. In 1946, the Federal Tort Claims Act was established. Once amended in 1956, it provided the procedures to properly file suit against a federal government employee and/or agency. In 1963, the California Tort Claims Act was established and provides the guidelines to properly file suit against a state, county or local government entity and/or its employees.
The most important step in the process is the requirement that before a government entity may be sued, all administrative remedies must be exhausted. This simply means that attempts must be made to resolve your claim directly with the government prior to filing suit in a civil court. Both Acts (Federal and California) require the filing of a “claim” against the governing body of whichever agency and/or employee you wish to sue.
The pre-conditions to filing a civil suit against Federal agencies and/or employees are provided in 28 U.S.C. §2675. The Federal rules state you must present your claim directly to the appropriate Federal agency for their review prior to their waiver of their sovereign immunity rights. The Act goes on to state that if a denial of the claim is not provided within 6 months of the time the claim was filed, it may statutorily be deemed denied. So how does this affect the statute of limitations to file suit in a civil court?
The FTCA requires the filing of a claim against the Federal entity within 2 years of the date of injury. Again, the appropriate Federal agency will then have at least 6 months to make a decision. If and when a decision to deny has been given, you will then have 6 months to file a civil law suit. If a decision has not been given by 6 months, you have two options. You can wait for a decision to be made, or you can utilize the statutorily deemed denial date of 6 months and file a civil suit at that time.
When filing a claim against the appropriate state, county, or local government agency you must act with expediency. The pre-conditions of filing a civil suit against these entities are expressed in the California Government Codes §§810-996.6. With very limited exceptions, no lawsuit for money damages may be brought against a state, county, or local governmental entity unless a written claim has been properly filed within a 6-month time limit.
Once filed, the agency then has 45 days to allow or reject your claim. If no decision is given within 45 days it may be deemed automatically rejected. After the agency has contacted you with a rejection, in whole or in part, you then have 6 months to file a civil suit against the governmental entity. If no action is provided by the agency within 45 days, your claim is statutorily rejected and the normal 2 year statute of limitations applies to file your civil suit.
The limited exceptions that allow for a late filing after 6-months are: (1) Mistake, inadvertence, surprise or excusable neglect; (2) Minority (the claimant was a minor during the entire 6 month period); (3) Physical or mental incapacity; and (4) Death of the claimant. Even in these situations, you must file an application within a “reasonable” time after the initial 6 months have expired, not to exceed one year after the 6 months have expired.
The most important impact these Acts have on the subrogation rights of a workers’ compensation insurer is the immediate need to investigate into the identity of any possible third-party tortfeasors as soon as a claim is filed. Even if it is suspected that a third-party civil suit will not ultimately be filed, it is still recommended that a claim be filed against the appropriate government agency to simply protect your rights. Remember, you can file a claim, get a denial or rejection from the government, and then decide not to proceed with the filing of a civil suit. However, if you don’t file a claim against the appropriate agency in a timely fashion, sovereign immunity will bar you from suing the governmental entity and your subrogation rights will most likely be lost.
And why do I say most likely? The one other loophole an insurer has is when the applicant has filed a claim against the government entity for you. As a subrogee, the insurer may still file a lien, and possibly intervene, when the injured employee has properly “exhausted all administrative remedies” then filed a civil law suit. Obviously, this would require the applicant to properly fulfill all the jurisdictional pre-conditions to filing suit as outlined above. And do you really want to rely on the applicant to protect your subrogation rights? Please don’t.