PART 750—GENERAL CLAIMS REGULATIONS Authority: 5 U.S.C. 301, 5 U.S.C. 552, 10 U.S.C. 5013, and 5148. Source: 57 FR 4722, Feb. 7, 1992, unless otherwise noted. Subpart A—General Provisions for Claims § 750.1 Scope of subpart A. (a) General. (2) The Deputy Assistant Judge Advocate General (Claims and Tort Litigation) (Code 15) is the manager of the Navy claims system established to evaluate, adjudicate, and provide litigation support for claims arising under the acts listed above and is responsible to the Judge Advocate General for the management of that system. The claims system consists of the Claims and Tort Litigation Division of the Office of the Judge Advocate General (Code 15), and the attorneys and support personnel assigned to the Tort Claims Unit at Naval Station, Norfolk, Virginia. For economy of language, Naval Legal Service Offices and Naval Legal Service Office Detachments are referred to as Naval Legal Service Command Activities. (3) Commanding officers of commands receiving claims are responsible for complying with the guidance on investigations in Sec. 750.2 and Sec. 750.3, the guidance on handling and forwarding claims found in Sec. 750.5, and the guidance provided in the JAG Instruction 5800.7E (JAGMAN) 1 1 http://www.jag.navy.mil. (b) This subpart A delineates general investigative and claims-processing requirements to be followed in the handling of all incidents and claims within the provisions of this part. Where the general provisions of this subpart A conflict with the specific provisions of any subsequent subpart of this part, the specific provisions govern. [57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53417, Sept. 19, 2007] § 750.2 Investigations: In general. (a) Conducting the investigation. (b) Thorough investigation. (c) Recovery barred. (d) Developing the facts. i.e. (e) Attorney work product. This investigation has been convened and conducted, and this report prepared, in contemplation of claims adjudication and litigation and for the express purpose of assisting attorneys representing the interests of the United States. (2) When an investigation is prepared by or at the direction of an attorney representing the Department of the Navy and is prepared in reasonable anticipation of litigation, it is exempt from mandatory disclosure under the Freedom of Information Act exemption (b)(5) and is normally privileged from discovery in litigation under the attorney work product privilege. 5 U.S.C. 552(b)(5). Unless an attorney prepares the report or personally directs its preparation, the investigation may not be privileged, even if it was prepared in reasonable anticipation of litigation. (f) Advance copy. [57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53418, Sept. 19, 2007] § 750.3 Investigations: The report. (a) Purpose. (b) Duties of the investigating officer. (1) To interview all witnesses to the incident and prepare summaries of their comments. Obtaining signed statements of Government witnesses is not necessary. Summaries of the witnesses' remarks prepared by the investigating officer are quite sufficient and generally expedite the gathering of information. On the other hand, written signed statements should be obtained from the claimant, wherever possible; (2) To inspect the property alleged to have been damaged by the action of Government personnel; (3) To determine the nature, extent, and amount of any damage, and to obtain pertinent repair bills or estimates and medical, hospital, and associated bills necessary to permit an evaluation of the claimant's loss; (4) To obtain maintenance records of the Navy motor vehicle, plane, or other piece of equipment involved in the claim; (5) To reduce to writing and incorporate into an appropriate investigative report all pertinent statements, summaries, exhibits, and other evidence considered by the investigator in arriving at his conclusions; and, (6) To furnish claim forms to any person expressing an interest in filing a claim and to refer such personnel to the Office of the Judge Advocate General, Tort Claims Unit Norfolk, 9620 Maryland Avenue, Suite 100, Norfolk, Virginia 23511-2989. (c) Content of the report. (1) Date, time, and exact place the accident or incident occurred, specifying the highway, street, or road; (2) A concise but complete statement of the incident with reference to physical facts observed and any statements by the personnel involved; (3) Names, grades, organizations, and addresses of military personnel and civilian witnesses; (4) Opinions as to whether military or civilian employees involved in the incident were acting within the scope of their duties at the time; (5) Description of the Government property involved in the incident and the nature of any damage it sustained; and, (6) Descriptions of all private property involved. (d) Immediate report of certain events. (1) Claims or possible claims arising out of a major disaster or out of an incident giving rise to five or more possible death or serious injury claims. (2) Upon filing of a claim that could result in litigation that would involve a new precedent or point of law. (3) Claims or possible claims that involve or are likely to involve an agency other than the Department of the Navy. (e) Request for assistance. (f) Report of Motor Vehicle Accident, Standard Form 91. RCS OPNAV 5100-6. (g) Priority of the investigation. (h) Contents of the report of investigation. (1) If pertinent to the investigation, the investigating officer should obtain a statement from claimant's employer showing claimant's occupation, wage or salary, and time lost from work as a result of the incident. In case of personal injury, the investigating officer should ask claimant to submit a written statement from the attending physician setting forth the nature and extent of injury and treatment, the duration and extent of any disability, the prognosis, and the period of hospitalization or incapacity. (2) A Privacy Act statement for each person who was asked to furnish personal information shall be provided. Social Security numbers of military personnel and civilian employees of the U.S. Government should be included in the report but should be obtained from available records, not from the individual. (3) Names, addresses, and ages of all civilians or military personnel injured or killed; names of insurance companies; information on the nature and extent of injuries, degree of permanent disability, prognosis, period of hospitalization, name and address of attending physician and hospital, and amount of medical, hospital, and burial expenses actually incurred; occupation and wage or salary of civilians injured or killed; and names, addresses, ages, relationship, and extent of dependency of survivors of any such person fatally injured should be included. (4) If straying animals are involved, a statement as to whether the jurisdiction has an “open range law” and, if so, reference to such statute. (5) A statement as to whether any person involved violated any State or Federal statute, local ordinance, or installation regulation and, if so, in what respect. The statute, ordinance, or regulation should be set out in full. (6) A statement on whether a police investigation was made. A copy of the police report of investigation should be included if available. (7) A statement on whether arrests were made or charges preferred, and the result of any trial or hearing in civil or military courts. (i) Expert opinions. (j) Action by command initiating the investigation and subsequent reviewing authorities. (2) A reviewing authority may direct that additional investigation be conducted, if considered necessary. The initial investigation should not be returned for such additional investigation, but should be forwarded by an endorsement indicating that the supplemental material will be submitted. The report shall be endorsed and forwarded to the next-level authority with appropriate recommendations including an assessment of the responsibility for the incident and a recommendation as to the disposition of any claim that may subsequently be filed. If a reviewing authority may be an adjudicating authority for a claim subsequently filed, one copy of the report shall be retained by such authority for at least 2 years after the incident. (3) It is essential that each investigative report reflect that a good faith effort was made to comply with the Privacy Act of 1974 (5 U.S.C. 552a) as implemented by 32 CFR 701, subpart F. Any indication of noncompliance shall be explained either in the preliminary statement of the forwarding endorsements and, when required, corrected. [57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53418, Sept. 19, 2007] § 750.4 Claims: In general. (a) Claims against the United States. (b) Claims in favor of the United States. (c) Assistance to claimants. [57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53418, Sept. 19, 2007] § 750.5 Claims: Proper claimants. (a) Damage to property cases. (b) Personal injury and death cases. (c) Subrogation. (d) Limitation on transfers and assignment. [57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53418, Sept. 19, 2007] § 750.6 Claims: Presentment. (a) Written demand and Standard Form 95. 2 2 http://www.jag.navy.mil. (b) To whom submitted. [72 FR 53418, Sept. 19, 2007] § 750.7 Claims: Action by receiving command. (a) Record date of receipt. (b) Determine the military activity involved. (c) Initiate an investigation. [57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53419, Sept. 19, 2007] § 750.8 Claims: Responsibility of the Tort Claims Unit Norfolk. (a) Reviewing prior actions. (b) Determining the sufficiency of the claim. (c) Adjudicating the claim. (2) The Tort Claims Unit Norfolk shall evaluate and, where liability is established, attempt to settle claims for amounts within its adjudicating authority. Negotiation at settlement figures above the Tort Claims Unit Norfolk's payment limits may be attempted if the claimant is informed that the final decision on the claim will be made at a higher level. (3) If a substantiated claim cannot be approved, settled, or compromised within the settlement authority limits of the Tort Claims Unit Norfolk, the Tort Claims Unit Norfolk shall contact OJAG Code 15 to seek additional settlement authority. To obtain the additional settlement authority, the following materials shall be forwarded to OJAG Code 15: (i) A letter of transmittal containing a recommendation on resolution of the claim. (ii) A memorandum of law containing a review of applicable law, an evaluation of liability, and a recommendation on the settlement value of the case. This memorandum should concentrate on the unusual aspects of applicable law, chronicle the attempts to resolve the case, provide information about the availability of witnesses, and outline any other information material to a resolution of the claim, i.e. (d) Preparing litigation reports. [72 FR 53419, Sept. 19, 2007] § 750.9 Claims: Payments. Claims approved for payment shall be expeditiously forwarded to the disbursing office or the General Accounting Office depending on the claims act involved and the amount of the requested payment. Generally, payment of a Federal tort claim above $2,500.00 requires submission of the payment voucher to the General Accounting Office. All other field authorized payment vouchers are submitted directly to the servicing disbursing office for payment. § 750.10 Claims: Settlement and release. (a) Fully and partially approved claims. (b) Release. (2) The claimant's acceptance of an award or settlement made under the provisions governing the administrative settlement of Federal tort claims or the civil action provisions of 28 U.S.C. 1346(b) also constitutes a complete release of any claim against any employee of the Government whose act or omission gave rise to the claim. [57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53419, Sept. 19, 2007] § 750.11 Claims: Denial. A final denial of any claim within this chapter shall be in writing and sent to the claimant, his attorney, or legal representative by certified or registered mail with return receipt requested. The denial notification shall include a statement of the reason or reasons for the denial. The notification shall include a statement that the claimant may: (a) If the claim is cognizable under the Federal Tort Claims Act, file suit in the appropriate United States District Court within 6 months of the date of the denial notification. (b) If the claim is cognizable under the Military Claims Act, appeal in writing to the Office of the Judge Advocate General, Claims and Tort Litigation Division within 30 days of the receipt of the denial notification. The notice of denial shall inform the claimant or his representative that is suit is not possible under the act. [57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53419, Sept. 19, 2007] § 750.12 Claims: Action when suit filed. (a) Action required of any Navy official receiving notice of suit. (b) Steps upon commencement of civil action. [57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53419, Sept. 19, 2007] § 750.13 Claims: Single service responsibility. (a) The Department of Defense has assigned single-service responsibility for processing claims in foreign countries under the following acts. The service and country assignments are in DODDIR 5515.8 of 9 June 1990. (1) Foreign Claims Act (10 U.S.C. 2734); (2) Military Claims Act (10 U.S.C. 2733); (3) International Agreements Claims Act (10 U.S.C. 2734a and b), on the pro-rata cost sharing of claims pursuant to international agreement; (4) NATO Status of Forces Agreement (4 UST 1792, TIAS 2846) and other similar agreements; (5) Medical Care Recovery Act (42 U.S.C. 2651-2653) claims for reimbursement for medical care furnished by the United States; (6) Nonscope Claims Act (10 U.S.C. 2737), claims not cognizable under any other provision of law; (7) Federal Claims Collection Act (31 U.S.C. Sections 3701, 3702, and 3711), claims and demands by the United States Government; and (8) Public Law 87-212 (10 U.S.C. 2736), advance or emergency payments. (b) Single service assignments for processing claims mentioned above are as follows: (1) Department of the Army: Austria, Belgium, El Salvador, the Federal Republic of Germany, Grenada, Honduras, Hungary, Korea, Iraq, Kuwait, Latvia, Lithuania, the Marshall Islands, the Netherlands, Poland, Romania, Slovakia, Slovenia and Switzerland, and as the Receiving State Office in the United States under 10 U.S.C. Sections 2734a—2734b and the NATO Status of Forces Agreement, and other Status of Forces Agreements with countries not covered by the NATO agreement. Claims arising from Operation Joint Endeavor, including the former Yugoslavia, Hungary, Slovakia and the Czech Republic, as well as the Rwanda Refugee Crisis Area are also assigned to the Army. (2) Department of the Navy: Bahrain, Greece, Iceland, Israel, Italy, Spain and the United Arab Emirates. (3) Department of the Air Force: Australia, Azores, Canada, Cyprus, Denmark, India, Japan, Luxembourg, Morocco, Nepal, Norway, Pakistan, Saudi Arabia, Tunisia, Turkey, the United Kingdom, Egypt, Oman, and claims involving, or generated by, the United States Central Command (CENTCOM) and the United States Special Operations Command (SOCOM), that arise in countries not specifically assigned to the Departments of the Army and the Navy. (c) U.S. forces afloat cases under $2,500.00. [57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007] §§ 750.14-750.20 [Reserved] Subpart B—Federal Tort Claims Act § 750.21 Scope of subpart B. This subpart provides information regarding the administrative processing and consideration of claims against the United States under the FTCA. The FTCA is a limited waiver of sovereign immunity. Under the FTCA, an individual can seek money damages for personal injury, death, or property damage caused by the negligent or wrongful act or omission of a Federal employee acting within the scope of employment. The FTCA also provides for compensation for injuries caused by certain intentional, wrongful conduct. The liability of the United States is determined in accordance with the law of the State where the act or omission occured. § 750.22 Exclusiveness of remedy. (a) The Federal Employees Liability Reform and Tort Compensation Act of 1988, Public Law 100-694 (amending 28 U.S.C. 2679(b) and 2679(d)), provides that the exclusive remedy for damage or loss of property, or personal injury or death arising from the negligent or wrongful acts or omissions of all Federal employees, acting within the scope of their employment, will be against the United States. This immunity from personal liability does not extend to allegations of constitutional torts, nor to allegations of violations of statutes specifically authorizing suits against individuals. (b) Other statutory provisions create immunity from personal liability for specific categories of Federal employees whose conduct, within the scope of their employment, gives rise to claims against the Government. Department of Defense health care providers are specifically protected by 10 U.S.C. 1089, the Gonzalez Act. DOD attorneys are specifically protected by 10 U.S.C. 1054. § 750.23 Definitions. (a) Negligent conduct. (b) Intentional torts. (c) Government employees General. (2) Government contractors. (i) Where the thing or service contracted for is deemed to be an “inherently dangerous activity”; (ii) where a nondelegable duty in the employer has been created by law; or, (iii) where the employer retains control over certain aspects of the contract and fails to discharge that control in a reasonable manner. (3) Employees of nonappropriated-fund activities. (d) Scope of employment. § 750.24 Statutory/regulatory authority. The statutory provisions of the Federal Tort Claims Act (FTCA) are at 28 U.S.C. 1346(b), 2671-2672, and 2674-2680. The Attorney General of the United States has issued regulations on administrative claims filed under the FTCA at 28 CFR part 14. If the provisions of this section and the Attorney General's regulations conflict, the Attorney General's regulations prevail. § 750.25 Scope of liability. (a) Territorial limitations. Beattie United States, (b) Exclusions from liability. (1) Statutory exclusions. (i) Claims based on the exercise or performance of, or the failure to exercise or perform, a discretionary Government function; (ii) Admiralty claims under 46 U.S.C. 741-752 or 781-790. Claims under the Death on the High Seas Act (46 U.S.C. 761), however, are cognizable under the FTCA. All admiralty claims will be referred to the Judge Advocate General for adjudication. Admiralty claims against the Navy shall be processed under part 752 of this Chapter; (iii) Claims arising from intentional torts, except those referred to in § 750.23(b); (iv) Claims arising from the combat activities of the military or naval forces, or the Coast Guard, during time of war. (2) Additional claims not payable. (i) A claim for personal injury or death of a member of the armed forces of the United States incurred incident to military service or duty. Compare United States Johnson, Feres United States, Brooks United States, (ii) Any claim by military personnel or civilian employees of the Navy, paid from appropriated funds, for personal property damage occurring incident to service or Federal employment, cognizable under 31 U.S.C. 3721 and the applicable Personnel Claims Regulations, 32 CFR part 751; (iii) Any claim by employees of nonappropriated-fund activities for personal property damage occurring incident to Federal employment. These claims will be processed as indicated in 32 CFR part 756; (iv) Any claim for personal injury or death covered by the Federal Employees' Compensation Act (5 U.S.C. 8116c); (v) Any claim for personal injury or death covered by the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 905 and 5 U.S.C. 8171); (vi) That portion of any claim for personal injury or property damage, caused by the negligence or fault of a Government contractor, to the extent such contractor may have assumed liability under the terms of the contract (see United States Seckinger, (vii) Any claim against the Department of the Navy by another Federal agency. Property belonging to the Government is not owned by any one department of the Government. The Government does not reimburse itself for the loss of its own property except where specifically provided for by law; and (viii) Any claim for damage to a vehicle rented pursuant to travel orders. § 750.26 The administrative claim. (a) Proper claimant. (b) Claim presented by agent or legal representative. (c) Proper claim. (d) Presentment. § 750.27 Information and supporting documentation. (a) Proper documentation. (1) Death. (ii) Decedent's employment or occupation at time of death, including monthly or yearly earnings and the duration of last employment; (iii) Full names, addresses, birth dates, relationship, and marital status of the decedent's survivors, including identification of survivors dependent for support upon decedent at the time of death; (iv) Degree of support provided by decedent to each survivor at time of death; (v) Decedent's general physical and mental condition before death; (vi) Itemized bills for medical and burial expenses; (vii) If damages for pain and suffering are claimed, a physician's detailed statement specifying the injuries suffered, duration of pain and suffering, any drugs administered for pain, and the decedent's physical condition during the interval between injury and death; and, (viii) Any other evidence or information which may affect the liability of the United States. (2) Personal injury. (ii) Itemized bills for medical, dental, and hospital expenses incurred, or itemized receipts of payments of such expenses; (iii) A statement of expected expenses for future treatment; (iv) If a claim is made for lost wages, a written statement from the employer itemizing actual time and wages lost; (v) If a claim is made for lost self-employed income, documentary evidence showing the amount of earnings actually lost; and (vi) Any other evidence or information which may affect the liability of the United States for the personal injury or the damages claimed. (3) Property damage. (ii) A detailed statement of the amount claimed for each item of property; (iii) An itemized receipt of payment for necessary repairs or itemized written estimates of the cost of repairs; (iv) A statement listing date of purchase, purchase price, and salvage value where repair is not economical; and (v) Any other evidence or information which may affect the liability of the United States for the property damage claimed. (b) Failure to submit necessary documentation. [57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007] § 750.28 Amendment of the claim. A proper claim may be amended at any time prior to settlement, denial, or the filing of suit. An amendment must be submitted in writing and must be signed by the claimant or duly authorized agent or legal representative. No finally denied claim for which reconsideration has not been requested under § 750.31 may be amended. § 750.29 Investigation and examination. Subpart A of this part requires an investigation for every incident that may result in a claim against or in favor of the United States. Where a previously unanticipated claim is filed against the Government and an investigation has not already been conducted, the appropriate claims officer shall immediately request an investigation. See subpart A of this part for specific action required by an adjudicating authority. § 750.30 Denial of the claim. Final denial of an administrative claim shall be in writing and shall be sent to the claimant, his duly authorized agent or legal representative by certified or registered mail, with return receipt requested. The notification of final denial shall include the reasons for the denial. The notification shall include a statement informing the claimant of his right to file suit in the appropriate Federal district court not later than 6 months after the date of the mailing of the notification. 28 CFR 14.9(a). § 750.31 Reconsideration. (a) Request. (b) Proper basis. (c) Effect of presentment of request. § 750.32 Suits under the Federal Tort Claims Act (FTCA). (a) Venue. (b) Jury trial. (c) Settlement. (d) Litigation support Who provides. (2) Litigation report. (3) Pretrial discovery. (4) Preservation of evidence. § 750.33 Damages. (a) Generally. (b) Limitations on liability. (c) Setoff. Brooks United States, (d) Suit. [57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007] § 750.34 Settlement and payment. (a) Settlement agreement When required. (i) Settled for less than the full amount claimed, or (ii) The claim was not presented on a Standard Form 95. (2) Contents. (b) DON role in settlement negotiations involving the U.S. Attorney or DOJ. (c) Payment of the claim Statutory authority. (i) A new precedent or a new point of law is involved; (ii) A question of policy is or may be involved; (iii) The United States is or may be entitled to indemnity or contribution from a third party and the agency is unable to adjust the third party claim; (iv) The compromise of a particular claim, as a practical matter, will or may control the disposition of a related claim in which the amount to be paid may exceed $100,000.00; or (v) The DON is informed or is otherwise aware that the United States or an employee, agent, or cost-plus contractor of the United States is involved in litigation based on a claim arising out of the same incident or transaction. (2) Specific delegation and designation Payment authority. Delegated and Designated Authority Federal Tort Claims Act Judge Advocate General—$200,000.00 Deputy Judge Advocate General—$200,000.00 Assistant Judge Advocate General (General Law)—$200,000.00 Deputy Assistant Judge Advocate General (Claims and Tort Litigation) and Deputy Division Director—$200,000.00 Head, Tort Claims Branch (Claims and Tort Litigation)—$200,000.00 Any payment of over $200,000.00 must be approved by DoJ. The Judge Advocate General, the Deputy Judge Advocate General, the Assistant Judge Advocate General (General Law), Deputy Assistant Judge Advocate General (Claims and Tort Litigation), and the Head, Tort Claims Branch (Claims and Tort Litigation) may deny Federal Tort Claims in any amount. (ii) Adjudicating authority. (3) Funding. [57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007] § 750.35 Attorney's fees. Attorney's fees are limited to 20 percent of any compromise or settlement of an administrative claim, and are limited to 25 percent of any judgment rendered in favor of a plaintiff, or of any settlement accomplished after suit is filed. These amounts are to be paid out of the amount awarded and not in addition to the award. 28 U.S.C. 2678. § 750.36 Time limitations. (a) Administrative claim. (b) Amendments. (c) Suits. §§ 750.37-750.40 [Reserved] Subpart C—Military Claims Act § 750.41 Scope of subpart C. This section prescribes the substantive bases and special procedural requirements for the settlement of claims against the United States for death, personal injury, or damage, loss, or destruction of property: (a) Caused by military personnel or civilian employees of the Department of the Navy (DON) (hereinafter DON personnel). (b) Incident to noncombat activities of the DON. (c) Territorial limitation. (d) Suit. § 750.42 Statutory authority. 10 U.S.C. 2733, as amended, commonly referred to as the Military Claims Act (MCA). § 750.43 Claims payable. (a) General. (1) Caused by an act or omission determined to be negligent, wrongful, or otherwise involving fault of DON personnel acting within the scope of their employment; or (2) Incident to noncombat activities of the DON. A claim may be settled under this provision if it arises from authorized activities essentially military in nature, having little parallel in civilian pursuits, and in which the U.S. Government has historically assumed a broad liability, even if not shown to have been caused by any particular act or omission by DON personnel while acting within the scope of their employment. Examples include practice firing of missiles and weapons, sonic booms, training and field exercises, and maneuvers that include operation of aircraft and vehicles, use and occupancy of real estate, and movement of combat or other vehicles designed especially for military use. Activities incident to combat, whether or not in time of war, and use of DON personnel during civil disturbances are excluded. (b) Specific claims payable. (1) Registered or insured mail. (2) Property bailed to the DON. (3) Real property. (4) Property of U.S. military personnel. (5) Health care and Legal Assistance Providers. § 750.44 Claims not payable. (a) Any claim for damage, loss, destruction, injury, or death which was proximately caused, in whole or in part, by any negligence or wrongful act on the part of the claimant, or his agent or employee, unless the law of the place where the act or omission complained of occurred would permit recovery from a private individual under like circumstances, and then only to the extent permitted by the law. (b) Any claim resulting from action by the enemy or resulting directly or indirectly from any act by armed forces engaged in combat. (c) Any claim for reimbursement of medical, hospital, or burial expenses to the extent already paid by the U.S. Government. (d) Any claim cognizable under: (1) Military Personnel and Civilian Employees' Claims Act, as amended. 31 U.S.C. 3721. (2) Foreign Claims Act. 10 U.S.C. 2734. (3) 10 U.S.C. 7622, relating to admiralty claims. See part 752 of this Chapter. (4) Federal Tort Claims Act. 28 U.S.C. 2671, 2672, and 2674-2680. (5) International Agreements Claims Act. 10 U.S.C. 2734a and 2734b. (6) Federal Employees' Compensation Act. 5 U.S.C. 8101-8150. (7) Longshore and Harbor Workers' Compensation Act. 33 U.S.C. 901-950. (e) Any claim for damage to or loss or destruction of real or personal property founded in written contract [except as provided in § 750.43(b) (2) and (3)]. (f) Any claim for rent of real or personal property [except as provided in § 750.43(b) (2) and (3)]. (g) Any claim involving infringement of patents. (h) Any claim for damage, loss, or destruction of mail prior to delivery by the Postal Service to authorized DON personnel or occurring due to the fault of, or while in the hands of, bonded personnel. (i) Any claim by a national, or corporation controlled by a national, of a country in armed conflict with the United States, or an ally of such country, unless the claimant is determined to be friendly to the United States. (j) Any claim for personal injury or death of a member of the Armed Forces or civilian employee incident to his service. 10 U.S.C. 2733(b)(3). (k) Any claim for damage to or loss of bailed property when bailor specifically assumes such risk. (l) Any claim for taking private real property by a continuing trespass or by technical trespass such as overflights of aircraft. (m) Any claim based solely on compassionate grounds. (n) Any claim to which the exceptions in 28 U.S.C. 2680 apply. [57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007] § 750.45 Filing claim. (a) Who may file. (1) U.S. citizens and inhabitants. (2) U.S. military personnel and civilian employees, except not for personal injury or death incident to service. (3) Persons in foreign countries who are not inhabitants. (4) States and their political subdivisions (including agencies). (5) Prisoners of war for personal property, but not personal injury. (6) Subrogees, to the extent they paid the claim. (b) Who may not file. (2) U.S. Government agencies and departments. (c) When to file/statute of limitations. (d) Where to file. (e) Claim form. (f) Amendment of claim. (g) Payment. [57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007] § 750.46 Applicable law. (a) Claims arising within the United States, Territories, Commonwealth, and Possessions. (b) Claims within foreign countries. (2) Apply the law of the foreign country governing the legal effect of contributory or comparative negligence by the claimant to determine the relative merits of the claim. If there is no foreign law on contributory or comparative negligence, apply traditional rules of contributory negligence. Apply foreign rules and regulations on operation of motor vehicles (rules of the road) to the extent those rules are not specifically superseded or preempted by U.S. Armed Forces traffic regulations. (c) Principles applicable to all MCA claims. (2) Claims for emotional distress will be considered only from the injured person or members of the injured person's immediate family. Claims from the injured person's immediate “zone of danger” ( i.e. (3) Claims under the MCA do not include the principles of absolute liability and punitive damages. (d) Clarification of terms. [57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007] § 750.47 Measure of damages for property claims. Determine the measure of damages in property claims arising in the United States or its territories, commonwealth, or possessions under the law of the place where the incident occurred. Determine the measure of damages in property claims arising overseas under general principles of American tort law, stated as follows: (a) If the property has been or can be economically repaired, the measure of damages shall be the actual or estimated net cost of the repairs necessary to substantially restore the property to the condition that existed immediately prior to the incident. Damages shall not exceed the value of the property immediately prior to the incident less the value thereof immediately after the incident. To determine the actual or estimated net cost of repairs, the value of any salvaged parts or materials and the amount of any net appreciation in value effected through the repair shall be deducted from the actual or estimated gross cost of repairs. The amount of any net depreciation in the value of the property shall be added to such gross cost of repairs, if such adjustments are sufficiently substantial in amount to warrant consideration. Estimates of the cost of repairs shall be based upon the lower or lowest of two or more competitive bids, or upon statements or estimates by one or more competent and disinterested persons, preferably reputable dealers or officials familiar with the type of property damaged, lost, or destroyed. (b) If the property cannot be economically repaired, the measure of damages shall be the value of the property immediately prior to the incident less the value immediately after the incident. Estimates of value shall be made, if possible, by one or more competent and disinterested persons, preferably reputable dealers or officials familiar with the type of property damaged, lost, or destroyed. (c) Loss of use of damaged property which is economically repairable may, if claimed, be included as an additional element of damage to the extent of the reasonable expense actually incurred for appropriate substitute property, for such period reasonably necessary for repairs, as long as idle property of the claimant was not employed as a substitute. When substitute property is not obtainable, other competent evidence such as rental value, if not speculative or remote, may be considered. When substitute property is reasonably available but not obtained and used by the claimant, loss of use is normally not payable. § 750.48 Measure of damages in injury or death cases. (a) Where an injury or death arises within the United States or its territories, commonwealth, or possessions, determine the measure of damages under the law of the location where the injury arises. (b) Where an injury or death arises in a foreign country and is otherwise cognizable and meritorious under this provision, damages will be determined in accordance with general principles of American tort law. The following is provided as guidance. (1) Measure of damages for overseas personal injury claims. (2) Wrongful death claims arising in foreign countries. (ii) The claim may be presented by or on behalf of the decedent's spouse, parent, child, or dependent relative. Claims may be consolidated for joint presentation by a representative of some or all of the beneficiaries or may be filed by a proper beneficiary individually. § 750.49 Delegations of adjudicating authority. (a) Settlement authority. See (2) The Judge Advocate General has delegated authority to settle claims for $100,000.00 or less. (3) The Deputy Judge Advocate General, the Assistant Judge Advocate General (General Law), the Deputy Assistant Judge Advocate General (Claims and Tort Litigation), and Head, Tort Claims Branch (Claims and Tort Litigation), have delegated authority to settle claims for $25,000.00 or less, and have denial authority in any amount. (4) Individuals with settlement authority under paragraph (a)(3) of this section may delegate all or part of their settlement authority. Such delegation must be in writing. (b) Appellate authority. [57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007] § 750.50 Advance payments. (a) Scope. (b) Statutory authority. (c) Officials with authority to make advance payments. (2) The Judge Advocate General has delegated authority to make advance payments up to $100,000.00. (3) The Deputy Assistant Judge Advocate General (Claims and Tort Litigation) and the Head, Tort Claims Branch (Claims and Tort Litigation) have delegated authority to make advance payments up to $25,000.00. (4) Naval Legal Service Office commanding officers and the Officer in Charge, U.S. Sending State Office for Italy have delegated authority to make advance payments up to $5,000.00. (5) Officers in Charge of Naval Legal Service Office Detachments, when specifically designated by cognizant Commanding Officers of Naval Legal Service Offices; and the Staff Judge Advocate at the U.S. Naval Station, Panama Canal have delegated authority to make advance payments up to $3,000.00. (6) Overseas commands with a Judge Advocate General's Corps officer or a judge advocate of the Marine Corps attached, have delegated authority to make advance payments up to $3,000.00. (d) Conditions for advance payments. (1) The injury, death, damage, or loss would be payable under the MCA (10 U.S.C. 2733); (2) The payee, insofar as can be determined, would be a proper claimant, or is the spouse or next of kin of a proper claimant who is incapacitated; (3) The provable damages are estimated to exceed the amount to be paid; (4) There exists an immediate need of the person who suffered the injury, damage, or loss, or of his family, or of the family of a person who was killed, for food, clothing, shelter, medical, or burial expenses, or other necessities, and other resources for such expenses are not reasonably available; (5) The prospective payee has signed a statement that it is understood that payment is not an admission by the Navy or the United States of liability for the accident concerned, and that the amount paid is not a gratuity but shall constitute an advance against and shall be deducted from any amount that may be allowed under any other provision of law to the person or his legal representative for injury, death, damage, or loss attributable to the accident concerned; and (6) No payment under 10 U.S.C. 2736 may be made if the accident occurred in a foreign country in which the NATO Status of Forces Agreement (4 U.S.T. 1792, TIAS 2846) or other similar agreement is in effect and the injury, death, damage, or loss (i) Was caused by a member or employee of the DON acting within the scope of employment or (ii) Occurred “incident to noncombat activities” of the DON as defined in § 750.43. [57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53421, Sept. 19, 2007] § 750.51 Final disposition. (a) Claimant to be notified. (b) Final denial. (1) The title of the appellate authority who will act on the appeal and that the appeal will be addressed to the adjudicating authority who last acted on the claim. (2) No form is prescribed for the appeal, but the grounds for appeal should be set forth fully. (3) The appeal must be submitted within 30 days of receipt by the claimant of notice of action on the claim. § 750.52 Appeal. (a) A claim which is disapproved in whole or in part may be appealed by the claimant at any time within 30 days after receipt of notification of disapproval. An appeal shall be in writing and state the grounds relied upon. An appeal is not an adversary proceeding and a hearing is not authorized; however, the claimant may obtain and submit any additional evidence or written argument for consideration by the appellate authority. (b) Upon receipt, the adjudicating authority examines the appeal, determines whether the appeal complies with this regulation, and reviews the claims investigative file to ensure it is complete. The claim, with the complete investigative file and a memorandum of law, will be forwarded to the appellate authority for action. If the evidence in the file, including information submitted by the claimant with the appeal, indicates the appeal should be approved, the adjudicating authority may treat the appeal as a request for reconsideration. (c) Processing of the appeal may be delayed pending further efforts by the adjudicating authority to settle the claim. Where the adjudicating authority does not reach a final agreement on an appealed claim, it shall send the entire claim file to the next higher settlement authority, who is the appellate authority for that claim. (d) The appellate authority shall notify the claimant in writing of the determination on appeal; that such determination constitutes the final administrative action on the claim; and there is no right to sue under the MCA. § 750.53 Cross-servicing. (a) See § 750.13 or information about single-service claims responsibility under DODDIR 5515.8 of 9 June 1990. (b) Claims settlement procedures. § 750.54 Payment of costs, settlements, and judgments related to certain medical or legal malpractice claims. (a) General. (1) The alleged negligent or wrongful actions or omissions arose in connection with either providing health care functions or legal services and within the scope of employment; and (2) Such personnel furnish prompt notification and delivery of all process served or received, and other documents, information, and assistance as requested; and cooperate in defending the action on the merits. (b) Requests for Indemnification. § 750.55 Attorney's fees. Attorney's fees not in excess of 20 percent of any settlement may be allowed. Attorney's fees so determined are to be paid out of the amount awarded and not in addition to the award. These fee limitations shall be incorporated in any settlement agreement secured from a claimant. §§ 750.56-750.60 [Reserved] Subpart D—Claims Not Cognizable Under Any Other Provision of Law § 750.61 Scope of subpart D. This section provides information on payment of claims against the United States, not payable under any other statute, caused by the act or omission, negligent, wrongful, or otherwise involving fault, of Department of the Navy (DON) military and civilian personnel (hereinafter DON personnel) acting outside the scope of their employment. § 750.62 Statutory authority. Section 2737 of title 10, United States Code, provides authority for the administrative settlement in an amount not to exceed $1,000.00 of any claim against the United States not cognizable under any other provision of law for damage, loss, or destruction of property or for personal injury or death caused by military personnel or a civilian official or employee of a military department incident to the use of a vehicle of the United States at any place, or any other property of the United States on a Government installation. There is no right to sue. There are no territorial limitations and the Act has worldwide application. § 750.63 Definitions. (a) Civilian official or employee. (b) Vehicle. (c) Government installation. § 750.64 Claim procedures. (a) The general provisions of subpart A of this part shall apply in determining what is a proper claim, who is a proper claimant, and how a claim is to be investigated and processed under 10 U.S.C. 2737 and this section. (b) A claim is presented when the DON receives from a claimant or the claimant's duly authorized agent, written notification of a nonscope claim incident accompanied by a demand for money damages in a sum certain. (c) A claimant may amend a claim at any time prior to final action. Amendments will be submitted in writing and signed by the claimant or the claimant's duly authorized agent. (d) Claims submitted under the provisions of the Federal Tort Claims Act (FTCA) or Military Claims Act (MCA) shall be considered automatically for an award under this section when payment would otherwise be barred because the DON personnel were not in the scope of their employment at the time of the incident. If a tender of payment under this section is not accepted by the claimant in full satisfaction of the claim, no award will be made, and the claim will be denied pursuant to the rules applicable to the statute under which it was submitted. (e) Damages caused by latent defects of ordinary, commercial type, Government equipment that were not payable under the MCA, Foreign Claims Act, or FTCA are payable under this section. (f) Nonscope claims for damages caused by local national DON employees overseas are also payable under this section if the injury was caused by the use of Government equipment. (g) Payment may not be made on a nonscope claim unless the claimant accepts the amount offered in full satisfaction of the claim and signs a settlement agreement. (h) Payment for nonscope claims adjudicated by field commands will be affected through their local disbursing office by use of funds obtained from the Judge Advocate General. (i) Claims submitted solely under 10 U.S.C. 2737 shall be promptly considered. If a nonscope claim is denied, the claimant shall be informed of reasons in writing and advised he may appeal in writing to the Secretary of the Navy (Judge Advocate General) provided the appeal is received within 30 days of the notice of denial. The provisions of § 750.51(b) of subpart C also apply to denials of nonscope claims. § 750.65 Statute of limitations. (a) A claim must be presented in writing within 2 years after it accrues. It accrues at the time the claimant discovers, or in the exercise of reasonable care should have discovered, the existence of the act or omission for which the claim is filed. (b) In computing time to determine whether the period of limitation has expired, exclude the incident date and include the date the claim was presented. § 750.66 Officials with authority to settle. Judge Advocate General; Deputy Judge Advocate General; Assistant Judge Advocate General (General Law); Deputy Assistant Judge Advocate General (Claims and Tort Litigation); and Head, Tort Claims Branch (Claims and Tort Litigation) may settle a nonscope claim. [72 FR 53421, Sept. 19, 2007] § 750.67 Scope of liability. (a) Subject to the exceptions in § 750.68 of specific claims not payable, the United States shall not pay more than $1,000.00 for a claim against the United States, not cognizable under any other provision of law, except Article 139, UCMJ. (b) Article 139, UCMJ, 10 U.S.C. 939, is not preemptive. The prohibition in 10 U.S.C. 2737 on paying claims “not cognizable under any other provisions of law” applies only to law authorizing claims against the United States. Article 139 authorizes claims against servicemembers. See part 755 of this chapter. § 750.68 Claims not payable. (a) A claim for damage, loss, or destruction of property or the personal injury or death caused wholly or partly by a negligent or wrongful act of the claimant or his agent or employee. (b) A claim, or any part thereof, that is legally recoverable by the claimant under an indemnifying law or indemnity contract. (c) A subrogated claim. § 750.69 Measure of damages. Generally, the measure-of-damage provisions under the MCA are used to determine the extent of recovery for nonscope claims. Compensation is computed in accordance with §§ 750.47 and 750.48 of subpart C, except damages for personal injury or death under this section shall not be for more than the cost of reasonable medical, hospital, and burial expenses actually incurred and not otherwise furnished or paid for by the United States.