The Obtuse World of Government Claims in California. Craig Schweikhard Claims Administrator-CJPRMA Daniel P. Barer Pollak, Vida and Fisher

Transcription

1 The Obtuse World of Government Claims in California Craig Schweikhard Claims Administrator-CJPRMA Daniel P. Barer Pollak, Vida and Fisher

2 Review for Government Claims Act A Little History British common law Sovereign immunity Government Claims Act Liability by statute Claims filing requirements The Claims Book - order from er@pvandf.com

3 What s Different in Litigating Against a Public Entity Except where otherwise provided by statute, Public Entities are not liable Liability is subject to any immunity of a Public Entity provided by statute Public Entity may avail themselves of any defense available to a private citizen

4 What Does the Claims Act Do For Us? Gave public agencies the opportunity to investigate claims before lawsuits Settle if there is liability Take corrective action Prepare the defense of the case

5 Step 1: Review the Claim It looks like we might owe this one Call department confirm facts Call claimant and nicely ask for documentation of damages Don t be afraid to apologize don t admit liability Get a signed release and request payment

6 Step 1: Review the Claim Not Sure that we owe this one Initiate an investigation Call involve department and get report (Police Reports, Fire Response, Public Works, etc.) Consider having City Attorney request report Go take a look (take some pictures) Call for help (TPA, Independent Claims Adjuster, Attorney, etc) Call the claimant (Be Nice, Explain the Process, Assure Action, Admit Nothing) Act on government claim

7 The Exceptions Certain type of claims do not require claims (sort of) Federal Cases Inverse Condemnation Civil Rights (section 1983) Pendent Jurisdiction is the authority of a United States federal court to hear a closely related state law claim against a party already facing a federal claim Employment Actions DFEH Contractual Payments Due Different Process Public Contracts Code Section

8 Public Contracts Public Contracts Code Section Contractor will submit claim in Writing Public Entity has 45 or 60 days to Respond in Writing Contractor has 15 days to dispute in Writing Public Agency must set up a Meet and confer within 30 days Government Claim may be filed for any undisputed amounts Statute Tolled during dispute resolution period. Does not apply to any tort theories related to the claim

9 Step 2: Is This a Valid Claim? Who may file a claim? The Claimant Anyone on behalf of the Claimant ( Attorney, Parent, Sibling, Total Stranger, etc.) Anyone Claiming to act on behalf of a class Every Claimant must file a claim Insurance Companies can ride claimant s Claim But not the other way around

10 Step 2: Is This a Valid Claim? What does a claim look like? Claim forms cannot require that they be used Legal form Unexpected claims Letters, Complaints, Notes, etc. Does the correspondence threaten litigation if damages are not paid Must have an address and must be signed

11 Where does a Claim Have to be Filed? Code specifies that claims must be filed with: Clerk Secretary Auditor Governing Body Claims Filed with other City Departments?????? Forward claims to RM Substantial Compliance

12 Step 3: Is the Claim Sufficient? What must a claim include? Name and address of claimant Address where notice is to be sent Date, time and place of incident (Location must be specific,important that claim is filed with proper agency) Circumstances of incident Indebtedness (lots of wiggle room on this one) Name of employee causing injury (if known) Amount of claim if less than $10,000 You only have 20 days to notice a claim insufficient! Notice must be sent in proper form

13 Insufficient Claims Complaint will be limited to legal theories in claim Failure to notice the insufficiency waives all defenses as to the content of the claim. Claims can be insufficient for being too broad as well as being too narrow.

14 Is this a Sufficient Claim? Claimant maintains City of Hooterville negligently illuminated the intersection of Ziffel St. and Hanny Ave. and the aforementioned intersection, in that the roadways contained insufficient and/or poor lighting. Moreover, this poor illumination was a direct result of the lighting in the center of the stated intersection which was below the Caltrans minimum for lighting, which if lighted properly, would have prevented Plaintiff s injuries, resulting from the aforementioned collision.

15 Is this Claim Sufficient? Claimant contends, among other things, that the accident resulted from the dangerous condition of public property in existence at the intersection where the incident took place i.e., Clampet Way and Drisdale Dr. The dangerous condition includes, inter alia, the obstruction of view of traffic at the intersection. The obstruction is caused by trees, signs, landscaping, planted and maintained by the City of Beverly Hills. The City of Beverly Hills, its agents, employees, servants and independent contractors, negligently, carelessly, recklessly and/or in some other actionable manner, acted or failed to act to properly maintain, supervise, repair, make use and/or warn of these dangerous conditions of the roadway at the intersection of the roadway at the intersection of Clampet Way and Drisdale Dr. in the City of Beverly Hills. Such acts or failure to act include, but are not limited to, failure to properly design said roadway so as to permit or cause a trap condition to exist, and failure to properly control, supervise, maintain, and or repair said road way so as to

16 To Notice or Not to Notice Don t Alert Them Donohue v. State of California (1986) 178 Cal.App.3d 795, 805 [224 Cal.Rptr. 57, 62-63]. The insufficiency of plaintiff's claim lies in its failure to set forth the factual basis for recovery alleged in the complaint; defendant could not have discovered such defect until plaintiff filed his complaint. Better Safe than Sorry Moore v. State - (1984) 157 Cal.App.3d 715, 203 Cal.Rptr. 847 Plaintiffs allowed to pursue for Med Mal case when claim was filed for lack of security at a hospital. Judge said no notice of insufficiency allowed them to go forward.

17 Claims Jurisdiction Important that claim is filed with proper agency Courts generally do not allow claims relief if claimants fail to identify the correct agency. Court Discourage Maintaining claims against the wrong entity. Knight v. City of Capitola Kobzoff v. County of L.A.

18 Step 4: What do I do If its not? Must send notice of insufficiency within 20 days of claims filing Must state the reason for the insufficiency Must be sent on proper form Insufficient claims should be rejected 15 days from notice Why is this notice of insufficiency important? Complaint will be limited to legal theories in claim Failure to notice the insufficiency waives all defenses as to the content of the claim.

19 Amendments to Claims Claimants have 15 days (+5 days for mail) to amend claim before final action can be taken. Claim can be amended anytime within the claims filing period or beyond if final action has not been taken. When amended claim is rejected the date of first rejection is controlling. Unless you reject claim without referring to original rejection

20 Step 5: Is the Claim Timely? Claim must be filed within 6 months or 182 days, which ever is longer from the accrual of the cause of action (+ 5 Days if mailed) 1 Year for real property claims Things attached to real property that claimant owns 6 months from the date of service on claims for indemnity Claim must include date of service Copy of the complaint

21 Accrual of the Cause of Action Accrual Date of Accident or Damage. From the last act False Arrest (release), Nuisance, Conspiracy Date of Discovery? Date Knew or Should have Known Suspicion of Wrongdoing Land Subsidence, Professional Negligence, Fraud or Malice

22 Step 6: What do I do with an Untimely Claim Claims must be returned as late within 45 days Must be returned on proper form Why is this important? Failure to return a late claim timely waives this defense Late claim filing may be fatal to the claim

23 Step 7: Application for Leave to File a Late Claim Claimant has a reasonable time not to exceed 1 year(+ 5 Days if mailed) to file for Leave to present a late claim. Including Minors Failure to file within one year is fatal to the claim Denial of Late Claim Application must include denial date Waives six month statue of limitation for filing petition Application must state reason for delay ( Must include a copy of claim)

24 Step 7: Application for Leave to File a Late Claim Applications are granted or denied When do we Grant application for leave Minors - always granted Death of claimant during filing period Physical or mental incapacity Mistake, inadvertence, surprise, excusable neglect Ignorance is not a defense Stupidity is Action must be taken on proper form

25 When Leave is Denied Petition the Court to be relieved from the claims statute. If Court agrees that reason is justified then the P.E. must show that they were prejudiced by the delay Burden of Proof on the P.E. Courts are inclined to have cases heard on their merits

26 Step 8: Rejection of Claim Claim should be rejected within 45 days Claim can also be rejected anytime after 45 days If not rejected within 45 days it is deemed rejected by operation of law Rejection of claims must follow prescribed form Claimant will have 6 months from the date of rejection to file suit Why is this important? Non-rejected Claims results in a 2 year statute of limitations Can be used to your advantage

27 Time Requirement For Response to Claims (Important Ones) Insufficient claims must be notice within 20 days. Claims must be returned as late within 45 days. Failure to meet deadlines waives defenses

28 Time Requirement For Response to Claims (Less Important Ones) Claims should be Rejected within 45 days. 45 Days to act on Late claim applications Failure to act on these does not waive there use. Claim can be rejected at any time. No action on application for late claim is deemed denied

29 Step 9: Prepare for Litigation Diary file for end of statute of limitations Check court records for filings against entity Continue to develop facts for the defense of the case If it s Bad Case continue to try and settle If it can t be settled or represents a large exposure consider early involvement of defense counsel

30 Caveat emptor (Advocatus) Government Claims Act operates at the whim of Judges Judges are trained to give plaintiffs their day in court and are reluctant to Throw Cases Out on technicalities. Judges will give plaintiffs benefit of the doubt Do all you can to preserve these defenses even it they don t work every time. You Never Know

31 Advanced Government Claims Training A Quiz

32 Question #1 Auto Accident with a City Vehicle occurs on January 5, State Farm Insurance Files a Subrogation Claim on March 2, 2017 for the property damage. Claimant Attorney files a bodily injury claim on behalf of the driver July 30, The bodily injury claim is timely since State Farm already filed the claim on behalf of their Insured? TRUE OR FALSE

33 Answer: False False Claimant must file a timely claim on their own behalf. The Converse is True. The insurance company could ride the claimant s claim under the laws of subrogation.

34 Rachel Rocket 9000 Main St. Fernwood, CA Dear Mr. Mayor. Your town is not safe and my bike was stolen from in front of my house last Monday. The policeman didn t do anything and now I need $200 for a new bike. If you don t pay for my bike I am going to have my daddy sue you. Please send the money to my house so I can ride bikes with my friends. Thank you Rachel Rocket

35 Question #2 Is This a Claim? What should be done? A. Nothing this is not a claim B. Accept it as a claim and reject it C. Accept it as a claim and notice it insufficient D. Pat her on the head and send her away

36 Answer C Accept it as a claim and notice it insufficient Case law has established that any correspondence that threatens litigation if monetary damages are not paid is a claim. (Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 709.)

37 Question #3 City truck runs into telephone pole On March 3, 2007 causing substantial damage to the pole and the public sidewalk. ATT files a claim on November 12, 2007.

38 Question #3 What action should you take? A. Return the claim as Late because it is beyond six months. B. Accept the claim as Timely because it was filed within six months. C. Accept the claim as timely because it is damage to real property. D. Accept the claim because it is a public utility

39 Answer Question #3 Answer is A Claim must be filed within 6 months or 182 days, which ever is longer from the Accrual of the Cause of Action (+ 5 Days if mailed) 1 Year for Real Property Claims Real Property - Physical Property and Fixtures attached to property that is owned by claimant.

40 Question # 4 On February 2, 2016 a large rain storm causes a mudslide from a public park into the property of the claimant causing damage to a permanent fence and landscaping. Claimant files a claim in person on February 9, 2017 alleging Inverse Condemnation, Dangerous Conditions, Nuisance and failure to undertake a mandatory duty. What Action do you take on this claim?

41 Question #4 Recommendations? A. Reject the Claim on its merits B. Return the Claim as Late. C. Nothing the claim is filed past one year and is fatally late. D. Refer it to defense counsel as Inverse is a Federal Cause of Action which doesn t require a claim. E. B and D

42 Answer to #4 E is Correct Late Claim Notice refers to claims requiring six month claims. Real Property Claims have one year filing period. If application for leave is filed it should be denied as claim is filed past one year. Federal Causes of Action don t require claims so don t let them sit around waiting for a suit to be filed.

43 Question #5 Two parties are involved in a car accident on a City street on March 1, One party files a timely claim and its rejected. The other party files Application for Leave to File a Late Claim on October 31, 2007 citing the reason for the late claim as excusable neglect that the other party to the accident did not tell him that the City was at fault for the accident. What action do you recommend the City take?

44 Question #5 What Action Do You Recommend? A. Return the claim as late. B. Grant the application for leave C. Deny the application for leave. D. Reject the claim because we are already on notice.

45 Answer Question #5 Answer is C Excusable neglect does not cover ignorance. (Stupidity is covered) Claimant must show diligence in discovering proper parties. Agency s actual knowledge of the potential claim's circumstances was irrelevant.