File a Claim

When you file your letter of intent it is the responsibility of the notified parties to contact their underwriter and report a claim against their insurance policy.  However we are finding that PEOPLE ARE NOT DOING THIS.

BEFORE YOU FILE YOUR CLIAM PLEASE READ!!!  

1.) To file a claim against a government official each state has a set of statutes that must be followed. It is not possible to call the insurance provider and file the claim. The insurance provider will send your claim to their lawyers for review. If the lawyer sees the claim is for a government elected or appointed official the claim will be denied. You will receive a letter back from the insurance company denying your claim.

2.) Identify the state statues for your state to see how to file your claim against a government elected or appointed official.

You will need to download the claim form and fill in the information on the form. The form must be notarized before you can file the claim form. Once it is completed you will mail the form to:

STATE BOARD OF ADJUSTMENT
ALABAMA STATE CAPITO
THIRD FLOOR EAST WING
MONTGOMERY, AL 36130-1435

PHYSICAL MAILING ADDRESS:
600 DEXTER AVENUE, SUITE 302
MONTGOMERY, AL 36104

Include the Notice to File a claim and the Affidavit of Facts

How to file a claim against the government elected or appointed officials in Alaska. 

12-821.01. Authorization of claim against public entity, public school or public employee

  1. Persons who have claims against a public entity, public school or a public employee shall file claims with the person or persons authorized to accept service for the public entity, public school or public employee as set forth in the Arizona rules of civil procedure within one hundred eighty days after the cause of action accrues. The claim shall contain facts sufficient to permit the public entity, public school or public employee to understand the basis on which liability is claimed. The claim shall also contain a specific amount for which the claim can be settled and the facts supporting that amount. Any claim that is not filed within one hundred eighty days after the cause of action accrues is barred and no action may be maintained thereon.
  2. For the purposes of this section, a cause of action accrues when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition that caused or contributed to the damage.
  3. Notwithstanding subsection A, any claim that must be submitted to a binding or nonbinding dispute resolution process or an administrative claims process or review process pursuant to a statute, ordinance, resolution, administrative or governmental rule or regulation, or contractual term shall not accrue for the purposes of this section until all such procedures, processes or remedies have been exhausted. The time in which to give notice of a potential claim and to sue on the claim shall run from the date on which a final decision or notice of disposition is issued in an alternative dispute resolution procedure, administrative claim process or review process. This subsection does not prevent the parties to any contract from agreeing to extend the time for filing such notice of claim.
  4. Notwithstanding subsection A, a minor or an insane or incompetent person may file a claim within one hundred eighty days after the disability ceases.
  5. A claim against a public entity or public employee filed pursuant to this section is deemed denied sixty days after the filing of the claim unless the claimant is advised of the denial in writing before the expiration of sixty days.
  6. This section applies to all causes of action that accrue on or after July 17, 1994.
  7. If a genuine issue of material fact exists as to whether the requirements of this section have been complied with, the issue shall be resolved before a trial on the merits and at the earliest possible time.
  8. This section does not apply to any claim for just compensation pursuant to chapter 8, article 2.1 of this title.


Maricopa County has a claim form that must be filled out and filed. 

Tucson has a claim form that must be filled out and filed.

When filing the claim forms add the Notice to fil a Claim and your Affidavit of Facts. All other claims will be filed with the school board in your district unless they have a special claim form for you to fill out and file. 

Tort information on how to file a claim in Arkansas. 

Steps for filing a claim against the government in California. 

Steps for filing a claim against a school board in California. 

Universal Citation: CO Rev Stat § 24-10-109 (2016)

(1) Any person claiming to have suffered an injury by a public entity or by an employee thereof while in the course of such employment, whether or not by a willful and wanton act or omission, shall file a written notice as provided in this section within one hundred eighty-two days after the date of the discovery of the injury, regardless of whether the person then knew all of the elements of a claim or of a cause of action for such injury. Compliance with the provisions of this section shall be a jurisdictional prerequisite to any action brought under the provisions of this article, and failure of compliance shall forever bar any such action.

(2) The notice shall contain the following:

(a) The name and address of the claimant and the name and address of his attorney, if any;

(b) A concise statement of the factual basis of the claim, including the date, time, place, and circumstances of the act, omission, or event complained of;

(c) The name and address of any public employee involved, if known;

(d) A concise statement of the nature and the extent of the injury claimed to have been suffered;

(e) A statement of the amount of monetary damages that is being requested.

(3) (a) If the claim is against the state or an employee thereof, the notice shall be filed with the attorney general. If the claim is against any other public entity or an employee thereof, the notice shall be filed with the governing body of the public entity or the attorney representing the public entity. Such notice shall be effective upon mailing by registered or certified mail, return receipt requested, or upon personal service.

(b) A notice required under this section that is properly filed with a public entity’s agent listed in the inventory of local governmental entities pursuant to section 24-32-116, is deemed to satisfy the requirements of this section.

(4) When the claim is one for death by wrongful act or omission, the notice may be presented by the personal representative, surviving spouse, or next of kin of the deceased.

(5) Any action brought pursuant to this article shall be commenced within the time period provided for that type of action in articles 80 and 81 of title 13, C.R.S., relating to limitation of actions, or it shall be forever barred; except that, if compliance with the provisions of subsection (6) of this section would otherwise result in the barring of an action, such time period shall be extended by the time period required for compliance with the provisions of subsection (6) of this section.

(6) No action brought pursuant to this article shall be commenced until after the claimant who has filed timely notice pursuant to subsection (1) of this section has received notice from the public entity that the public entity has denied the claim or until after ninety days has passed following the filing of the notice of claim required by this section, whichever occurs first.

Download the claim form. 

CHAPTER 53* CLAIMS AGAINST THE STATE

*Cited. 166 C. 251. The legislative intent expressed by chapter is that an employee is immune when the state is sued and that the state may be sued in instances where a private person would be liable; the immunity conferred and the liability assumed by the state under chapter was not intended to extend to the acts and omissions of a public defender which arise during the course of the attorney-client relationship and over which the state has no right of control. 168 C. 563. Without its consent, state is immune from suit for liability; Connecticut Constitution Art. XI, Sec. 4 and chapter provided for adjudication of claims against the state with its permission. 172 C. 603. Cited. 177 C. 268. Chapter does not apply to teachers in local school systems. 180 C. 96. Cited. 186 C. 300; 191 C. 222; 195 C. 534; 204 C. 17; 212 C. 415; 216 C. 85; 227 C. 545; 238 C. 146; 239 C. 265. On claim for money damages, plaintiffs must seek waiver from Claims Commissioner before bringing action against state in Superior Court regardless of whether plaintiffs have alleged that state officers acted in excess of statutory authority. 265 C. 301. When plaintiff brings action for money damages against state, he must proceed through Office of the Claims Commissioner pursuant to chapter; otherwise, the action will be dismissed for lack of subject matter jurisdiction under doctrine of sovereign immunity. Id., 338. Chapter delegated to Claims Commissioner duty formerly held by legislature to review all claims against state for monetary damages; chapter pertains exclusively to claims for monetary damages against state. 271 C. 96. Defendant must first obtain permission from Claims Commissioner to bring legal counterclaims seeking monetary damages from the state; statutes do not demonstrate a legislative intent to treat counterclaims differently than claims asserted by plaintiffs. 310 C. 60.

Cited. 12 CA 449; 41 CA 61. Action against state for money damages is barred by sovereign immunity and must be dismissed by court for lack of subject matter jurisdiction unless plaintiff has received permission from Claims Commissioner to bring the action or pleaded a valid exception to doctrine of sovereign immunity. 86 CA 748.

§ 4001. Limitation on civil liability.

Except as otherwise provided by the Constitutions or laws of the United States or of the State of Delaware, as the same may expressly require or be interpreted as requiring by a court of competent jurisdiction, no claim or cause of action shall arise, and no judgment, damages, penalties, costs or other money entitlement shall be awarded or assessed against the State or any public officer or employee, including the members of any board, commission, conservation district or agency of the State, whether elected or appointed, and whether now or previously serving as such, in any civil suit or proceeding at law or in equity, or before any administrative tribunal, where the following elements are present:

(1) The act or omission complained of arose out of and in connection with the performance of an official duty requiring a determination of policy, the interpretation or enforcement of statutes, rules or regulations, the granting or withholding of publicly created or regulated entitlement or privilege or any other official duty involving the exercise of discretion on the part of the public officer, employee or member, or anyone over whom the public officer, employee or member shall have supervisory authority;

(2) The act or omission complained of was done in good faith and in the belief that the public interest would best be served thereby; and

(3) The act or omission complained of was done without gross or wanton negligence;

provided that the immunity of judges, the Attorney General and Deputy Attorneys General, and members of the General Assembly shall, as to all civil claims or causes of action founded upon an act or omission arising out of the performance of an official duty, be absolute; provided further that in any civil action or proceeding against the State or a public officer, employee or member of the State, the plaintiff shall have the burden of proving the absence of 1 or more of the elements of immunity as set forth in this section.

768.28 Waiver of sovereign immunity in tort actions; recovery limits; civil liability for damages caused during a riot; limitation on attorney fees; statute of limitations; exclusions; indemnification; risk management programs.

(1) In accordance with s. 13, Art. X of the State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee’s office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act. Any such action may be brought in the county where the property in litigation is located or, if the affected agency or subdivision has an office in such county for the transaction of its customary business, where the cause of action accrued. However, any such action against a state university board of trustees shall be brought in the county in which that university’s main campus is located or in the county in which the cause of action accrued if the university maintains therein a substantial presence for the transaction of its customary business.

(2) As used in this act, “state agencies or subdivisions” include the executive departments, the Legislature, the judicial branch (including public defenders), and the independent establishments of the state, including state university boards of trustees; counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities, including the Florida Space Authority.

(3) Except for a municipality and the Florida Space Authority, the affected agency or subdivision may, at its discretion, request the assistance of the Department of Financial Services in the consideration, adjustment, and settlement of any claim under this act.

(4) Subject to the provisions of this section, any state agency or subdivision shall have the right to appeal any award, compromise, settlement, or determination to the court of appropriate jurisdiction.

(5)(a) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $200,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $300,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $200,000 or $300,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature. Notwithstanding the limited waiver of sovereign immunity provided herein, the state or an agency or subdivision thereof may agree, within the limits of insurance coverage provided, to settle a claim made or a judgment rendered against it without further action by the Legislature, but the state or agency or subdivision thereof shall not be deemed to have waived any defense of sovereign immunity or to have increased the limits of its liability as a result of its obtaining insurance coverage for tortious acts in excess of the $200,000 or $300,000 waiver provided above. The limitations of liability set forth in this subsection shall apply to the state and its agencies and subdivisions whether or not the state or its agencies or subdivisions possessed sovereign immunity before July 1, 1974.

(b) A municipality has a duty to allow the municipal law enforcement agency to respond appropriately to protect persons and property during a riot or an unlawful assembly based on the availability of adequate equipment to its municipal law enforcement officers and relevant state and federal laws. If the governing body of a municipality or a person authorized by the governing body of the municipality breaches that duty, the municipality is civilly liable for any damages, including damages arising from personal injury, wrongful death, or property damages proximately caused by the municipality’s breach of duty. The sovereign immunity recovery limits in paragraph (a) do not apply to an action under this paragraph.

(6)(a) An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, county, or the Florida Space Authority, presents such claim in writing to the Department of Financial Services, within 3 years after such claim accrues and the Department of Financial Services or the appropriate agency denies the claim in writing; except that, if:

1. Such claim is for contribution pursuant to s. 768.31, it must be so presented within 6 months after the judgment against the tortfeasor seeking contribution has become final by lapse of time for appeal or after appellate review or, if there is no such judgment, within 6 months after the tortfeasor seeking contribution has either discharged the common liability by payment or agreed, while the action is pending against her or him, to discharge the common liability; or

2. Such action is for wrongful death, the claimant must present the claim in writing to the Department of Financial Services within 2 years after the claim accrues.

(b) For purposes of this section, the requirements of notice to the agency and denial of the claim pursuant to paragraph (a) are conditions precedent to maintaining an action but shall not be deemed to be elements of the cause of action and shall not affect the date on which the cause of action accrues.

(c) The claimant shall also provide to the agency the claimant’s date and place of birth and social security number if the claimant is an individual, or a federal identification number if the claimant is not an individual. The claimant shall also state the case style, tribunal, the nature and amount of all adjudicated penalties, fines, fees, victim restitution fund, and other judgments in excess of $200, whether imposed by a civil, criminal, or administrative tribunal, owed by the claimant to the state, its agency, officer or subdivision. If there exists no prior adjudicated unpaid claim in excess of $200, the claimant shall so state.

You will need to submit your Notice to File a Claim and an Affidavit of Facts to the Risk Management Department.  Make sure you have read the statutes and follow the instructions. 

The rules for filing a claim against a government elected or appointed official in the State of Georgia. 

How to file a claim against a government elected or appointed official in the State of Hawaii. 

The Idaho Tort Claims Act (ITCA), Title 6-Chapter 9 Tort Claims Against Governmental Entities addresses liability of the state including obligations for defense of employees, exceptions to liability, time and manner of filing claims, content of claims, time for allowance or denial of claims, recourse of suit for denied claims, limitation of actions, service of summons and complaint, and limits of liability.All agency reports of new incidents or potential claims should be directed to the Technical Records Specialist for initial file creation. For reporting instructions or questions, contact us at [email protected] or (208) 332-1869.Every agency of the state should be aware of ITCA and be prepared to give filing information to anyone who requests the information.

Notice of claim form

(705 ILCS 505/22-1) (from Ch. 37, par. 439.22-1)

    Sec. 22-1. Within 1 year from the date that such an injury was received or such a cause of action accrued, any person who is about to commence any action in the Court of Claims against the State of Illinois, the Medical Center Commission, the Board of Trustees of the University of Illinois, the Board of Trustees of Southern Illinois University, the Board of Trustees of Chicago State University, the Board of Trustees of Eastern Illinois University, the Board of Trustees of Governors State University, the Board of Trustees of Illinois State University, the Board of Trustees of Northeastern Illinois University, the Board of Trustees of Northern Illinois University, the Board of Trustees of Western Illinois University, or the Board of Trustees of the Illinois Mathematics and Science Academy, for damages on account of any injury to his person shall file in the office of the Attorney General and also in the office of the Clerk of the Court of Claims, either by himself, his agent, or attorney, giving the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, a brief description of how the accident occurred, and the name and address of the attending physician, if any, except as otherwise provided by the Crime Victims Compensation Act.

    In actions for death by wrongful act, neglect or default, the executor of the estate, or in the event there is no will, the administrator or other personal representative of the decedent, shall file within 1 year of the date of death or the date that the executor or administrator is qualified, whichever occurs later, in the office of the Attorney General and also in the office of the Clerk of the Court of Claims, giving the name of the person to whom the cause of action has accrued, the name and last residence of the decedent, the date of the accident causing death, the date of the decedent’s demise, the place or location where the accident causing the death occurred, the date and about the hour of the accident, a brief description of how the accident occurred, and the names and addresses of the attending physician and treating hospital if any, except as otherwise provided by the Crime Victims Compensation Act.

    A claimant is not required to file the notice required by this Section if he or she files his or her claim within one year of its accrual.

Your claim for personal injury or property damage against the city-county must be made in writing as prescribed in Indiana Code 34-13-3. You have 180 days after the loss to file your tort claim. It must comply with the state code.

Filing a tort claim is part of a legal process. If you have any questions about how to file a claim, contact an attorney. The city’s attorneys and employees are not authorized by law to assist you with filing a claim.

Review the actions or conditions resulting in nonliability listed in Indiana Code 34-13-3-3 before filing a claim.

Complete the Notice of Tort Claim according to the form’s instructions. Keep a copy of your claim, your receipts for your bills, and your certified or registered mail receipt.

Each person who had a loss should file a separate claim.

How to file a claim against the government of Iowa. 

TORT CLAIM

Procedures Required by Kansas Statutes

K.S.A. §12-105b

Uniform procedure …; presentment of claims; …; notice, contents, limitation on commencement of action; … .

(a) All claims against a municipality must be presented in writing with a full account of the items, and no claim shall be allowed except in accordance with the provisions of this section. A claim may be the usual statement of account of the vendor or party rendering a service or other written statement showing the required information.

(c) No costs shall be recovered against a municipality in any action brought against it for any claims allowed in part unless the recovery shall be for a greater sum than the amount allowed, with the interest due. Subject to the terms of applicable insurance contracts, judgments and settlements obtained for claims recoverable pursuant to the Kansas tort claims act shall be presented for payment in accordance with this section or in such manner as the governing body may designate.

(d) Any person having a claim against a municipality which could give rise to an action brought under the Kansas tort claims act shall file a written notice as provided in this subsection before commencing such action. The notice shall be filed with the clerk or governing body of the municipality and shall contain the following:

(1) The name and address of the claimant and the name and address of the claimant’s attorney, if any;

(2) a concise statement of the factual basis of the claim, including the date, time, place and circumstances of the act, omission or event complained of;

(3) the name and address of any public officer or employee involved, if known;

(4) a concise statement of the nature and the extent of the injury claimed to have been suffered; and

(5) a statement of the amount of monetary damages that is being requested.

In the filing of a notice of claim, substantial compliance with the provisions and requirements of this subsection shall constitute valid filing of a claim. The contents of such notice shall not be admissible in any subsequent action arising out of the claim. Once notice of the claim is filed, no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first. A claim is deemed denied if the municipality fails to approve the claim in its entirety within 120 days unless the interested parties have reached a settlement before the expiration of that period. No person may initiate an action against a municipality unless the claim has been denied in whole or part. Any action brought pursuant to the Kansas tort claims act shall be commenced within the time period provided for in the code of civil procedure or it shall be forever barred, except that, a claimant shall have no less than 90 days from the date the claim is denied or deemed denied in which to commence an action.

How to file a claim against the government elected or appointed official in Kentucky. 

§1892. Payment and adjustment of claims, policies other than life and health and accident; vehicle damage claims; extension of time to respond to claims during emergency or disaster; penalties; arson-related claims suspension

            A.(1) All insurers issuing any type of contract, other than those specified in R.S. 22:1811, 1821, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest. The insurer shall notify the insurance producer of record of all such payments for property damage claims made in accordance with this Paragraph.

            (2) All insurers issuing any type of contract, other than those specified in R.S. 22:1811, R.S. 22:1821, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any third party property damage claim and of any reasonable medical expenses claim due any bona fide third party claimant within thirty days after written agreement of settlement of the claim from any third party claimant.

            (3) Except in the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim and of a claim for reasonable medical expenses within fourteen days after notification of loss by the claimant. In the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim within thirty days after notification of loss by the claimant except that the commissioner may promulgate a rule for extending the time period for initiating a loss adjustment for damages arising from a presidentially declared emergency or disaster or a gubernatorially declared emergency or disaster up to an additional thirty days. Thereafter, only one additional extension of the period of time for initiating a loss adjustment may be allowed and must be approved by the Senate Committee on Insurance and the House Committee on Insurance, voting separately. Failure to comply with the provisions of this Paragraph shall subject the insurer to the penalties provided in R.S. 22:1973.

            (4) All insurers shall make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim.

            (5) An insurer shall issue a copy of the insurer’s field adjuster report, relative to the insured’s property damage claim, to the insured within fifteen days of receiving a request for such from the insured.

            B.(1)(a) Except as provided in Subparagraph (b) of this Paragraph, failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4) of this Section, respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2) of this Section when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.

            (b) In the case of a presidentially or gubernatorially declared disaster, failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4) of this Section, respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2) of this Section when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or two thousand five hundred dollars, whichever is greater, payable to the insured, or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs or two thousand five hundred dollars, whichever is greater. The penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.

            (2) The period set herein for payment of losses resulting from fire and the penalty provisions for nonpayment within the period shall not apply where the loss from fire was arson related and the state fire marshal or other state or local investigative bodies have the loss under active arson investigation. The provisions relative to time of payment and penalties shall commence to run upon certification of the investigating authority that there is no evidence of arson or that there is insufficient evidence to warrant further proceedings.

            (3) The provisions relative to suspension of payment due to arson shall not apply to a bona fide lender which holds a valid recorded mortgage on the property in question.

            (4) Whenever a property damage claim is on a personal vehicle owned by the third party claimant and as a direct consequence of the inactions of the insurer and the third party claimant’s loss the third party claimant is deprived of use of the personal vehicle for more than five working days, excluding Saturdays, Sundays, and holidays, the insurer responsible for payment of the claim shall pay, to the extent legally responsible, for reasonable expenses incurred by the third party claimant in obtaining alternative transportation for the entire period of time during which the third party claimant is without the use of his personal vehicle. Failure to make such payment within thirty days after receipt of adequate written proof and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause shall subject the insurer to, in addition to the amount of such reasonable expenses incurred, a reasonable penalty not to exceed ten percent of such reasonable expenses or one thousand dollars whichever is greater together with reasonable attorneys fees for the collection of such expenses.

            (5) When an insurance policy provides for the adjustment and settlement of first-party motor vehicle total losses on the basis of actual cash value or replacement with another of like kind and quality, and the insurer elects a cash settlement based on the actual cost to purchase a comparable motor vehicle, such costs shall be derived by using one of the following:

            (a) A fair market value survey conducted using qualified retail automobile dealers in the local market area as resources. If there are no dealers in the local market area, the nearest reasonable market can be used.

            (b) The retail cost as determined from a generally recognized used motor vehicle industry source; such as, an electronic database, if the valuation documents generated by the database are provided to the first-party claimant, or a guidebook that is available to the general public. If the insured demonstrates, by presenting two independent appraisals, based on measurable and discernable factors, including the vehicle’s preloss condition, that the vehicle would have a higher cash value in the local market area than the value reflected in the source’s database or the guidebook, the local market value shall be used in determining the actual cash value.

            (c) A qualified expert appraiser selected and agreed upon by the insured and insurer. The appraiser shall produce a written nonbinding appraisal establishing the actual cash value of the vehicle’s preloss condition.

            (d) For the purposes of this Paragraph, local market area shall mean a reasonable distance surrounding the area where a motor vehicle is principally garaged, or the usual location of the vehicle covered by the policy.

            (6)(a) For the purposes of this Paragraph the following terms have the meanings ascribed to them:

            (i) “Damaged property” means a dwelling, structure, personal property, or any other property, except a vehicle, that requires repairs, replacement, restoration, or remediation to reestablish its former condition.

            (ii) “Depreciation” means depreciation including but not limited to the cost of goods, materials, labor, and services necessary to replace, repair, or rebuild damaged property.

            (b) An insurance policy covering damaged property may allow for depreciation.

            (c) An insurance policy covering damaged property shall provide notice that depreciation may be deducted or withheld, in a form approved by the commissioner.

            (d) If depreciation is applied to a loss for damaged property, the insurer shall provide a written explanation as to how the depreciation was calculated.

            (e) Depreciation shall be reasonable and based on a combination of objective criteria and subjective assessment, including the actual condition of the property prior to loss.

            C.(1) All claims brought by insureds, workers’ compensation claimants, or third parties against an insurer shall be paid by check or draft of the insurer or, if offered by the insurer and the claimant requests, electronic transfer of funds to the order of the claimant to whom payment of the claim is due pursuant to the policy provisions, or his attorney, or upon direction of the claimant to one specified; however, the check or draft shall be made jointly to the claimant and the employer when the employer has advanced the claims payment to the claimant. The check or draft shall be paid jointly until the amount of the advanced claims payment has been recovered by the employer.

            (2) No insurer shall intentionally or unreasonably delay, for more than three calendar days, exclusive of Saturdays, Sundays, and legal holidays, after presentation for collection, the processing of any properly executed and endorsed check or draft issued in settlement of an insurance claim.

            (3) Any insurer violating this Subsection shall pay the insured or claimant a penalty of two hundred dollars or fifteen percent of the face amount of the check or draft, whichever is greater.

            D.(1) When making a payment incident to a claim, no insurer shall require repairs be made to a motor vehicle, including window glass repairs or replacement, in a particular place or shop or by a particular entity.

            (2) An insurer shall not recommend the use of a particular motor vehicle service or network of repair services without informing the insured or claimant that the insured or claimant is under no obligation to use the recommended repair service or network of repair services.

            (3) An insurer shall not engage in any act or practice of intimidation, coercion, or threat to use a specified place of business for repair and replacement services.

            (4) The commissioner may levy the following fines against any insurer that violates this Subsection:

            (a) For a first offense, one thousand dollars.

            (b) For a second offense within a twelve-month period, two thousand five hundred dollars.

            (c) For a third or subsequent offense within a twelve-month period, five thousand dollars.

            (5) A violation of this Subsection shall constitute an additional ground, under R.S. 22:1554, for the commissioner to refuse to issue a license or to suspend or revoke a license issued to any producer to sell insurance in this state.

            E.(1) An insurer shall not require that repairs, replacement, restoration, or remediation be made to an insured’s property by a particular preferred vendor or recommended contractor when making a payment on a residential or commercial property damage claim.

            (2) An insurer shall not recommend the use of a particular preferred vendor or recommended contractor without informing the insured or claimant that the insured or claimant is under no obligation to use the preferred vendor or recommended contractor to complete repairs, replacement, restoration, or remediation of the insured’s property.

            F.(1) In the adjustment or settlement of first-party losses under fire and extended coverage policies, an insurer is required to include general contractor’s overhead and profit in payments for losses when the services of a general contractor are reasonably foreseeable. This requirement applies to policies that provide for the adjustment and settlement of losses on a replacement cost basis and to policies that provide for the adjustment and settlement of losses on an actual cash value basis.

            (2) The deduction of prospective contractor overhead, prospective contractor profit, and sales tax in determining the actual cash value of an adjustment or settlement is not allowed on replacement cost policies or on actual cash value policies.

            G. On or after January 1, 2022, residential property insurance policies shall contain the following provision (with permission to substitute the words “this company” with a more accurate descriptive term for the insurer):

            “Appraisal. If you and this Company fail to agree as to the amount of loss, either party may demand that the amount of the loss be set by appraisal. If either party makes a written demand for appraisal, each party shall select a competent appraiser and notify the other party of their appraiser’s identity within twenty days of receipt of the written demand for appraisal. The appraisers shall select a competent and impartial umpire; but, if after fifteen days the appraisers have not agreed upon who will serve as umpire, the umpire shall be appointed by a judge of the court of record in which the property is located. The appraisers shall then appraise the loss. If the appraisers submit written notice of an agreement as to the amount of the loss to this Company, the amount agreed upon shall set the amount of the loss. If the appraisers fail to agree within thirty days, the appraisers shall submit their differences along with any supporting documentation to the umpire, who shall appraise the loss. The appraisers may extend the time to sixty days for which they must agree upon the amount of loss or submit their differences and supporting documents to the umpire, if the extension is agreed to by the appraisers from both parties. A written agreement signed by the umpire and either party’s appraiser shall set the amount of the loss, pursuant to the appraisal process, but shall not preclude either party from exercising its rights under the policy or the law. Each appraiser shall be paid by the party selecting that appraiser. Other expenses of the appraisal and the expenses of the umpire shall be divided and paid in equal shares by you and this Company. If there is an appraisal award, all applicable policy terms, limits, deductibles, and conditions will still apply. If you file a lawsuit relative to this policy against this Company prior to a demand for appraisal, the lawsuit will be held in abatement until the execution of an appraisal award.”

§8107. Notice to governmental entity

1.  Notice requirements for filing.  Within 365 days after any claim or cause of action permitted by this chapter accrues, or at a later time within the limits of section 8110, when a claimant shows good cause why notice could not have reasonably been filed within the 365-day limit, a claimant or a claimant’s personal representative or attorney shall file a written notice containing:  
A. The name and address of the claimant, and the name and address of the claimant’s attorney or other representative, if any;   [PL 1989, c. 327 (AMD).]
B. A concise statement of the basis of the claim, including the date, time, place and circumstances of the act, omission or occurrence complained of;   [PL 1977, c. 2, §2 (NEW).]
C. The name and address of any governmental employee involved, if known;   [PL 1977, c. 2, §2 (NEW).]
D. A concise statement of the nature and extent of the injury claimed to have been suffered; and   [PL 1977, c. 2, §2 (NEW).]
E. A statement of the amount of monetary damages claimed.   [PL 1977, c. 2, §2 (NEW).]
[PL 2019, c. 214, §1 (AMD).]
2.  Incapacity.  If the claimant is incapacitated and thereby prevented from presenting and filing the claim within the time prescribed or if the claimant is a minor, the claim may be presented and filed on behalf of the claimant by any relative, attorney or agent representing the claimant. If the claimant is a minor when the cause of action accrues, the notice may be presented within 365 days of the minor’s attaining 18 years of age.  
[PL 2019, c. 214, §2 (AMD).]
3.  Notices.   
A. If the claim is against the State or an employee thereof, copies of the notice shall be addressed to and filed with the state department, board, agency, commission or authority whose act or omission is said to have caused the injury and the Attorney General.   [PL 1977, c. 2, §2 (NEW).]
B. Notice of claims against any political subdivision or an employee thereof shall be addressed to and filed with one of the persons upon whom a summons and complaint could be served under the Maine Rules of Civil Procedure, Rule 4, in a civil action against a political subdivision.   [PL 1977, c. 578, §3 (AMD).]
[PL 1979, c. 578, §3 (AMD).]
4.  Substantial notice compliance required.  No claim or action shall be commenced against a governmental entity or employee in the Superior Court unless the foregoing notice provisions are substantially complied with. A claim filed under this section shall not be held invalid or insufficient by reason of an inaccuracy in stating the time, place, nature or cause of the claim, or otherwise, unless it is shown that the governmental entity was in fact prejudiced thereby. A claim filed under this section shall not be held invalid solely because a claim based on the same facts was filed under a different statutory procedure and was disallowed.  
[PL 1977, c. 591, §3 (AMD).]
5.  Definition of good cause.  “Good cause” as used in subsection 1 includes but is not limited to any cases in which any official of the governmental entity whose duties and authority include the settlement of tort claims or any tort liability insurer of the governmental entity makes direct oral or written contacts with the claimant or the claimant’s personal representative or attorney, including payments to or on behalf of the claimant, that contain or imply a promise of coverage sufficient to cause a reasonable person to believe that the losses for which no timely notice claim is filed would be covered.  
If oral or written contact is limited to coverage for specific injuries or damage, a claimant is not excused from filing the notice required by this section in relation to other claims or causes of action permitted by this chapter that arise out of the same incident or event.  
Nothing in this subsection prevents the injured party and an agent or insurer of the governmental entity from entering into a consensual agreement pursuant to which the injured party releases the governmental entity from any further liability in exchange for an agreed upon consideration.  

Suing the State of Maryland or its’ Employee

You can sue the State of Maryland for an injury caused by the State or one of its employees.  The rules for this kind of lawsuit are found in the Maryland Tort Claims Act (“MTCA”). (The MTCA can be found in the State Government Article of the Maryland Code)

Steps you must take to sue the State or its employee under the MTCA:

  1. Mail, deliver, or fax, a letter to the Maryland State Treasurer stating why you believe the State (or its employee) did something wrong and why the State should be responsible for your injury.  This is called a “claim letter.”  You should send this claim letter to the Treasurer’s Office within one year of the date that your injury occurred.  Information to put in the claim letter includes:

    • The name and address of the people involved.

    • A statement of how, where, and when the injury occurred.

    • A description of the injury.

    • A demand for specific damages such as a particular amount of money.

    • If you are represented by a lawyer, the lawyer’s name, address, and telephone number.

    • Your signature and contact information.

  2. If you miss the one year deadline to send a claim letter to the Treasurer, you can still file a lawsuit, but the State may have a defense to the suit and could ask the court to dismiss your case.   The court will decide whether to allow your case to go forward. Read the Law: Md. Code, State Government § 12-106

  3. When you file a claim letter, the Treasurer should investigate your claim, just like an insurance company would. The investigation may take some time. If you are running out of time to file your lawsuit under the statute of limitations, do not wait for the Treasurer’s response.

  4. When you file the lawsuit, you must still serve the complaint, the summons, and any other documents according to the Maryland Rules.  (The fact that you sent the claim letter does not remove this requirement.)

  5. What happens if I win my lawsuit against the State?  If you win your lawsuit against the State, there is a limit on the amount that the State may be required to pay to you. Under MTCA, the state cannot be held liable to any one person for more than $400,000 for injuries arising from a single incident.  Read the Law: Md. Code, State Government § 12-104Code of Maryland Regulations (COMAR) 25.02.01 through 25.02.07

Read the Law: Md. Code, State Government §§ 12-101 – 110Md. Code, Courts and Judicial Proceedings § 5-522

Section 2. Public employers shall be liable for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment, in the same manner and to the same extent as a private individual under like circumstances, except that public employers shall not be liable to levy of execution on any real and personal property to satisfy judgment, and shall not be liable for interest prior to judgment or for punitive damages or for any amount in excess of $100,000; provided, however, that all claims for serious bodily injury against the Massachusetts Bay Transportation Authority shall not be subject to a $100,000 limitation on compensatory damages. The remedies provided by this chapter shall be exclusive of any other civil action or proceeding by reason of the same subject matter against the public employer or, the public employee or his estate whose negligent or wrongful act or omission gave rise to such claim, and no such public employee or the estate of such public employee shall be liable for any injury or loss of property or personal injury or death caused by his negligent or wrongful act or omission while acting within the scope of his office or employment; provided, however, that a public employee shall provide reasonable cooperation to the public employer in the defense of any action brought under this chapter. Failure to provide such reasonable cooperation on the part of a public employee shall cause the public employee to be jointly liable with the public employer, to the extent that the failure to provide reasonable cooperation prejudiced the defense of the action. Information obtained from the public employee in providing such reasonable cooperation may not be used as evidence in any disciplinary action against the employee. Final judgment in an action brought against a public employer under this chapter shall constitute a complete bar to any action by a party to such judgment against such public employer or public employee by reason of the same subject matter.

Notwithstanding that a public employee shall not be liable for negligent or wrongful acts as described in the preceding paragraph, if a cause of action is improperly commenced against a public employee of the commonwealth alleging injury or loss of property or personal injury or death as the result of the negligent or wrongful act or omission of such employee, said employee may request representation by the public attorney of the commonwealth. The public attorney shall defend the public employee with respect to the cause of action at no cost to the public employee; provided, however, that the public attorney determines that the public employee was acting within the scope of his office or employment at the time of the alleged loss, injury, or death, and, further, that said public employee provides reasonable cooperation to the public employer and public attorney in the defense of any action arising out of the same subject matter. If, in the opinion of the public attorney, representation of the public employee, under this paragraph would result in a conflict of interest, the public attorney shall not be required to represent the public employee. Under said circumstances, the commonwealth shall reimburse the public employee for reasonable attorney fees incurred by the public employee in his defense of the cause of action; provided, however, that the same conditions exist which are required for representation of said employee by the public attorney under this paragraph.

Download the claim form to file your claim. 

HOW TO FILE A CLAIM AGAINST THE STATE OF MICHIGAN FOR LESS THAN $1,000 FOR THE LOSS OF PERSONAL PROPERTY OR PERSONAL INJURY

  1. Print the DTMB-1104 Claim Form, Claim Against the State of Michigan for Personal Losses Less than $1000. Page 2 contains instruction and information and does not need to be sent in with the Claim Form.
  2. Fill out the DTMB-1104 Claim Form according to the instructions sheet (page 2-3).
  3. Gather and COPY any documents necessary to support your claim. WE DO NOT RETURN ORIGINAL DOCUMENTS.
  4. THE DTMB-1104 CLAIM FORM MUST BE SIGNED BY THE CLAIMANT AND NOTARIZED.
  5. DO NOT CROSS OUT ANY TEXT PRINTED ON THE FORM.
  6. Send the DTMB-1104 Claim Form to the address listed on page 3.

 

CLAIMS BY THE GENERAL PUBLIC

Refer to Administrative Guide 0620.08 for more information about claims made by the General Public.

CLAIMS BY STATE OF MICHIGAN EMPLOYEES

Claims OVER $500 must be mailed to the address listed on page 2-3 of the DTMB-1104 Claim Form.

Claims for $500 or less may be submitted to your department’s Human Resources Office or Finance Office, or you may mail it to the address listed on DTMB-1104 Claim Form, page 2-3.

Pursuant to MCL 600.6420, your Department Director may choose to resolve any employee’s claim of $500 or less, EXCEPT CLAIMS FOR EYEGLASSES, JEWELRY OVER $50, CASH OVER $100.00, AND PERSONAL VEHICLE CLAIMS.

Refer to Administrative Guide 0620.07 for more information about claims made by State of Michigan Employees.

CLAIMS BY CURRENT AND FORMER MICHIGAN DEPARTMENT OF CORRECTION PRISONERS

You may print out the DTMB-1104-P Claim Form here, or a prisoner may request a DTMB-1104-P Claim Form from the Grievance Coordinator at the correctional facility where he/she is incarcerated.

After completing the Claim Form and gathering the documentation needed to support your claim, submit the DTMB-1104-P Claim Form and supporting documentation to the Grievance Coordinator at your facility per MDOC’s policies and procedures.

Prisoners must file property claims consistent with the requirements of the Department of Corrections PD 03.02.131 “PRISONER STATE ADMINISTRATIVE BOARD PROPERTY CLAIMS” and its related procedure OP 03.02.131 which may be found in the law library of each facility.

Refer to Administrative Guide 0620.06 for more information about claims made by MDOC prisoners.

SUBMITTING A CLAIM DENIED BY THE DEPARTMENT OF TRANSPORTATION

In order to submit a claim denied by the Michigan Department of Transportation to the State Administrative Board, please send an email to: [email protected] indicating you would like to submit your claim to the State Administrative Board for consideration.

For your convenience, you may cut and paste the following into the email:

I want to submit my claim originally denied by the Department of Transportation to the State Administrative Board for consideration.

My full name is (insert your first and last name)

I filed my claim at the Regional Transportation Service Center in (insert name of city)

Please refer to MCL 691.1402 for more information regarding claims for Highway Defects:

In order to prevail, a claimant must show:

  1. Failure to maintain “the improved portion of the highway designed for vehicular travel”
    reasonably safe and fit for travel (design);
  2. Notice of condition given to Michigan Department of Transportation 30 days before
    the accident (constructive notice); and
  3. Where the defective condition caused or was a contributing factor to the damages suffered.

466.01 DEFINITIONS.

Subdivision 1.Municipality.

 

For the purposes of sections 466.01 to 466.15, “municipality” means any city, whether organized under home rule charter or otherwise, any county, town, public authority, public corporation, nonprofit firefighting corporation that has associated with it a relief association as defined in section 424A.001, subdivision 4, special district, school district, however organized, county agricultural society organized pursuant to chapter 38, joint powers board or organization created under section 471.59 or other statute, public library, regional public library system, multicounty multitype library system, the following local collaboratives whose plans have been approved by the Children’s Cabinet: family services collaboratives established under section 124D.23, children’s mental health collaboratives established under sections 245.491 to 245.495, or a collaborative established by the merger of a children’s mental health collaborative and a family services collaborative, other political subdivision, community action agency, or a limited partnership in which a community action agency is the sole general partner.

Subd. 2.Governing body of a town, school district.

 

For the purposes of sections 466.01 to 466.15, the “governing body of a town” means the board of supervisors thereof; “school district” includes an unorganized territory as defined in Minnesota Statutes 1961, section 120.02, subdivision 17.

Subd. 3.Release, hazardous substance.

 

For the purposes of sections 466.01 to 466.15, “release” and “hazardous substance” have the meanings given in section 115B.02.

Subd. 4.

 

[Repealed, 1997 c 7 art 1 s 140]

Subd. 5.

 

[Repealed, 1997 c 7 art 1 s 140]

Subd. 6.Employee, officer, or agent.

 

For the purposes of sections 466.01 to 466.15, “employee,” “officer,” or “agent” means a present or former employee, officer, or agent of a municipality, or other person acting on behalf of the municipality in an official capacity, temporarily or permanently, with or without compensation, but does not include an independent contractor other than a nonprofit firefighting corporation that has associated with it a relief association as defined in section 424A.001, subdivision 4. “Employee” includes court administrators who are not under section 480.181, subdivision 1, paragraph (b), and their staff under chapter 485, district administration staff in the Second and Fourth Judicial Districts, and other employees within the court system whose salaries are paid by the county, other than employees who remain on the county payroll under section 480.181, subdivision 2.

466.02 TORT LIABILITY.

Subject to the limitations of sections 466.01 to 466.15, every municipality is subject to liability for its torts and those of its officers, employees and agents acting within the scope of their employment or duties whether arising out of a governmental or proprietary function.

Universal Citation: MS Code § 11-46-11 (2013)

(1) After all procedures within a governmental entity have been exhausted, any person having a claim under this chapter shall proceed as he might in any action at law or in equity, except that at least ninety (90) days before instituting suit, the person must file a notice of claim with the chief executive officer of the governmental entity.

(2) (a) Service of notice of claim shall be made as follows:

(i) For local governments:

1. If the governmental entity is a county, then upon the chancery clerk of the county sued;

2. If the governmental entity is a municipality, then upon the city clerk.

(ii) If the governmental entity to be sued is a state entity as defined in Section 11-46-1(j), or is a political subdivision other than a county or municipality, service of notice of claim shall be had only upon that entity’s or political subdivision’s chief executive officer. The chief executive officer of a governmental entity participating in a plan administered by the board pursuant to Section 11-46-7(3) shall notify the board of any claims filed within five (5) days after receipt thereof.

(b) Every notice of claim shall:

(i) Be in writing;

(ii) Be delivered in person or by registered or certified United States mail; and

(iii) Contain a short and plain statement of the facts upon which the claim is based, including the circumstances which brought about the injury, the extent of the injury, the time and place the injury occurred, the names of all persons known to be involved, the amount of money damages sought, and the residence of the person making the claim at the time of the injury and at the time of filing the notice.

(3) (a) All actions brought under this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after, except that filing a notice of claim within the required one-year period will toll the statute of limitations for ninety-five (95) days from the date the chief executive officer of the state entity or the chief executive officer or other statutorily designated official of a political subdivision receives the notice of claim.

(b) No action whatsoever may be maintained by the claimant until the claimant receives a notice of denial of claim or the tolling period expires, whichever comes first, after which the claimant has an additional ninety (90) days to file suit; failure to file within the time allowed is an absolute bar to any further proceedings under this chapter.

(c) All notices of denial of claim shall be served by governmental entities upon claimants by certified mail, return receipt requested, only.

(d) (i) To determine the running of limitations periods under this chapter, service of any notice of claim or notice of denial of claim is effective upon delivery by the methods statutorily designated in this chapter.

(ii) The limitations period provided in this section controls and shall be exclusive in all actions subject to and brought under the provisions of this chapter, notwithstanding the nature of the claim, the label or other characterization the claimant may use to describe it, or the provisions of any other statute of limitations that would otherwise govern the type of claim or legal theory if it were not subject to or brought under the provisions of this chapter.

(4) From and after April 1, 1993, if any person entitled to bring any action under this chapter shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the action within the time allowed in this section after his disability shall be removed as provided by law. The savings in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.

 537.600.  Sovereign immunity in effect — exceptions. — 1.  Such sovereign or governmental tort immunity as existed at common law in this state prior to September 12, 1977, except to the extent waived, abrogated or modified by statutes in effect prior to that date, shall remain in full force and effect; except that, the immunity of the public entity from liability and suit for compensatory damages for negligent acts or omissions is hereby expressly waived in the following instances:

  (1)  Injuries directly resulting from the negligent acts or omissions by public employees arising out of the operation of motor vehicles or motorized vehicles within the course of their employment;

  (2)  Injuries caused by the condition of a public entity’s property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury directly resulted from the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred, and that either a negligent or wrongful act or omission of an employee of the public entity within the course of his employment created the dangerous condition or a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition.  In any action under this subdivision wherein a plaintiff alleges that he was damaged by the negligent, defective or dangerous design of a highway or road, which was designed and constructed prior to September 12, 1977, the public entity shall be entitled to a defense which shall be a complete bar to recovery whenever the public entity can prove by a preponderance of the evidence that the alleged negligent, defective, or dangerous design reasonably complied with highway and road design standards generally accepted at the time the road or highway was designed and constructed.

  2.  The express waiver of sovereign immunity in the instances specified in subdivisions (1) and (2) of subsection 1 of this section are absolute waivers of sovereign immunity in all cases within such situations whether or not the public entity was functioning in a governmental or proprietary capacity and whether or not the public entity is covered by a liability insurance for tort.

  3.  The term “public entity” as used in this section shall include any multistate compact agency created by a compact formed between this state and any other state which has been approved by the Congress of the United States.

­­——–

(L. 1978 H.B. 1650 § 1, A.L. 1985 S.B. 323, A.L. 1989 H.B. 161, A.L. 2005 H.B. 58)

(1988) Law abrogating sovereign immunity is procedural as it creates no new cause of action but only provides remedy for cause of action whose remedy was previously barred and therefore applies retrospectively. Wilkes v. Mo. Highway and Transportation Commission, 762 S.W.2d 27 (Mo.banc).

(1988) Broken down stop sign constituted dangerous condition of government property and sovereign immunity is waived.  Donahue v. City of St. Louis, 758 S.W.2d 50 (Mo.banc).

(1988) Placement of a folding partition against a ladder created a dangerous condition of property within meaning of section 537.600, RSMo. Alexander v. State, 756 S.W.2d 539 (Mo.banc).

(1989) Public housing authorities are statutory municipal corporations and exercise only governmental functions which are subject to governmental immunity. Privately owned rental property enrolled in rental assistance program is not “public property” and was not within statutory exception to governmental immunity. (Mo.App. W.D.) Tyler v. Housing Auth. of Kansas City, 781 S.W.2d 110.

(1992)  The sovereign immunity doctrine is uniquely applicable to governmental entities and is not transferable to an agent of that entity.  The public duty doctrine holds that public officers are not liable in tort for injuries or damages sustained by particular individuals that result from a breach of the duty that officers owe to the general public.  Automobile accident victim’s attempt to intermingle the two doctrines fails.  The abrogation of sovereign immunity in no way implicitly abrogated the public duty doctrine. Beaver v. Gosney, 825 S.W.2d 870 (Mo.App.W.D.).

(1992) A medical center, a not-for-profit corporation, which is not controlled by or answerable to public officials, public entities, or public itself, is not a public entity protected by sovereign immunity.  Stacy v. Truman Medical Center, 836 S.W.2d 911 (Mo.banc).

(1993) Court finds a direct conflict between the state doctrine of sovereign immunity and the federal Emergency Medical Treatment and Active Labor Act to extent public hospital claimed to be immune from “patient dumping” claim.  Federal act preempted state sovereign immunity doctrine.  Helton v. Phelps County Regional Medical Center, 817 F.Supp. 789 (E.D. Mo.).

(1993) Doctrine of sovereign immunity applies to regional planning commission.  Where slander is not among the circumstances obligating insurer to pay on behalf of the regional planning under insurance policy, regional planning commission did not waive its sovereign immunity against plaintiff’s claim.  Balderre v. Beeman, 837 S.W.2d 309 (Mo. App. S.D.).

(1993) Where high speed chase by law enforcement officers resulted in one civilian death and substantial property damage and personal injury to others, statute that waives sovereign immunity for negligent acts or omissions of public employees in operation of motor vehicles in course of employment does not create duty running from individual defendants to either general public or to plaintiffs individually.  Boyle v. City of Liberty, Mo., 833 F.Supp. 1436 (W.D. Mo.).

(1993) Plaintiff may have action against city because official immunity doctrine, which provides that public officers are not personally liable for negligent acts related to discretionary duties and performed within scope of their authority, is different legal concept than sovereign immunity doctrine which waives sovereign immunity for injuries resulting from negligent acts of public employees arising out of operation of motorized vehicles.  Bachmann v. Welby, 860 S.W.2d 31 (Mo. App. E.D.).

(1993) Statute waives sovereign immunity in certain cases, however, statute does not authorize awarding of costs against state agency.  In instances where general assembly waives immunity regarding costs, it explicitly specifies such waivers as it provides in sections 550.020, RSMo, and 536.087, RSMo.  Richardson v. State Highway and Transportation Commission, 863 S.W.2d 876 (Mo.banc).

(1999) Doctrine of res ipsa loquitur cannot be used to establish the dangerous-condition exception of this section.  Hale ex rel. Hale v. City of Jefferson, 6 S.W.3d 187 (Mo.App.W.D.).

(2001) Section does not bar claims for contribution when compensatory damage claims for injuries result from dangerous conditions on public property and a joint obligation on the liability is shared by tort-feasors.  McNeill Trucking Company, Inc. v. Missouri State Highway and Transportation Commission, 35 S.W.3d 846 (Mo.banc).

(2006) Section waives governmental employer’s sovereign immunity for its employees’ negligent operation of motor vehicle; as official immunity is personal to the governmental employee, the employer is not shielded from liability based upon respondeat superior. Davis v. Lambert-St. Louis International Airport, 193 S.W.3d 760 (Mo.banc).

(2009) Operation of a city-owned emergency medical service is a governmental function, even though the city charges a fee for the service; that service provides a general public benefit and serves the public health and welfare.  Richardson v. City of St. Louis, 293 S.W.3d 133 (Mo.App. E.D.).

(2016) Charter school’s participation in Missouri public entity risk management fund did not operate as a waiver of sovereign immunity and thus school bus driver’s wrongful discharge claim on discrimination on basis of sexual orientation was barred.  Moore v. Lift for Life Academy, Inc., 489 S.W.3d 843 (Mo.App.E.D.).

2-9-301. Filing of claims against state and political subdivisions — disposition by state agency as prerequisite. (1) All claims against the state arising under the provisions of parts 1 through 3 of this chapter must be presented in writing to the department of administration.

(2) A complaint based on a claim subject to the provisions of subsection (1) may not be filed in district court unless the claimant has first presented the claim to the department of administration and the department has finally denied the claim. The department must grant or deny the claim in writing within 120 days after the claim is presented to the department. The failure of the department to make final disposition of a claim within 120 days after it is presented to the department must be considered a final denial of the claim for purposes of this subsection. Upon the department’s receipt of the claim, the statute of limitations on the claim is tolled for 120 days. The provisions of this subsection do not apply to claims that may be asserted under Title 25, chapter 20, by third-party complaint, cross-claim, or counterclaim.

(3) All claims against a political subdivision arising under the provisions of parts 1 through 3 shall be presented to and filed with the clerk or secretary of the political subdivision.

81-8,209.

State Tort Claims Act; purpose.

The State of Nebraska shall not be liable for the torts of its officers, agents, or employees, and no suit shall be maintained against the state, any state agency, or any employee of the state on any tort claim except to the extent, and only to the extent, provided by the State Tort Claims Act. The Legislature further declares that it is its intent and purpose through such act to provide uniform procedures for the bringing of tort claims against the state or an employee of the state and that the procedures provided by such act shall be used to the exclusion of all others.

Claim Against the State of Nevada

A claim may be filed against the State of Nevada for an incident/accident in which a State employee and/or State agency is alleged to have caused damages to another party. To file a claim against the State of Nevada, a claim form must be completed and submitted to the Office of the Attorney General per the instructions on the claim form. Please see the link below to access the claim form.

Once the claim form is received, the incident will be investigated to determine of the State is liable for the damages due to the alleged incident. If the State is liable, damages will be paid as appropriate. Claims are processed in accordance with the Nevada Revised Statutes, Chapter 41.

New Hampshire law provides that plaintiffs who wish to sue the state must commence their lawsuit within three years. Plaintiffs must provide the relevant agency with written notice of their intent to sue within 180 days of the injury. The Board of Claims for the state will have jurisdiction over any claims alleging less than $5,000 in damages. The Superior Court maintains jurisdiction over claims that are more than $5,0000.

59:2-2. Liability of public entity
a. A public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances.

Notice to file a claim instructions. 

41-4-16. Notice of claims.

A. Every person who claims damages from the state or any local public body under the Tort Claims Act shall cause to be presented to the risk management division for claims against the state, the mayor of the municipality for claims against the municipality, the superintendent of the school district for claims against the school district, the county clerk of a county for claims against the county, or to the administrative head of any other local public body for claims against such local public body, within ninety days after an occurrence giving rise to a claim for which immunity has been waived under the Tort Claims Act, a written notice stating the time, place and circumstances of the loss or injury.

B. No suit or action for which immunity has been waived under the Tort Claims Act shall be maintained and no court shall have jurisdiction to consider any suit or action against the state or any local public body unless notice has been given as required by this section, or unless the governmental entity had actual notice of the occurrence. The time for giving notice does not include the time, not exceeding ninety days, during which the injured person is incapacitated from giving the notice by reason of injury.

C. When a claim for which immunity has been waived under the Tort Claims Act is one for wrongful death, the required notice may be presented by, or on behalf of, the personal representative of the deceased person or any person claiming benefits of the proceeds of a wrongful death action, or the consular officer of a foreign country of which the deceased was a citizen, within six months after the date of the occurrence of the injury which resulted in the death; but if the person for whose death the claim is made has presented a notice that would have been sufficient had he lived, an action for wrongful death may be brought without any additional notice.

History: 1953 Comp., § 5-14-14.1, enacted by Laws 1977, ch. 386, § 12.

ANNOTATIONS

Emergency clauses. — Laws 1977, ch. 386, § 23 contained an emergency clause and was approved April 8, 1977.

Constitutional right to access courts not violated. — The 90-day notice provision of the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] does not violate the constitutional right of access to the courts. The legislative purposes requiring timely and reasonable notice to a governmental entity of potential claims are rationally related to legitimate governmental interests such as: (1) to allow investigation of a matter while the evidence is fresh; (2) to allow questioning of witnesses; (3) to protect against stimulated or aggravated claims; or (4) to allow consideration of whether a claim should be paid or not. Powell v. N.M. State Hwy. & Transp. Dep’t, 1994-NMCA-035, 117 N.M. 415, 872 P.2d 388, cert. denied, 117 N.M. 524, 873 P.2d 270.

Due process. — The notice requirement is not unreasonably short, thus not constituting a denial of due process. Ferguson v. N.M. State Hwy. Comm’n, 1982-NMCA-180, 99 N.M. 194, 656 P.2d 244, cert. denied, 99 N.M. 226, 656 P.2d 889 (1983).

The period of giving notice does not deny an incapacitated victim due process of law. Ferguson v. N.M. State Hwy. Comm’n, 1982-NMCA-180, 99 N.M. 194, 656 P.2d 244, cert. denied, 99 N.M. 226, 656 P.2d 889 (1983).

Application of the notice provision of Subsection A to any minor, whatever the circumstances, would not, in every circumstance, violate due process. Erwin v. City of Santa Fe, 1993-NMCA-065, 115 N.M. 596, 855 P.2d 1060.

Section inapplicable to claims against public employees. — The language of the written notice section does not include, and therefore does not apply to, claims against public employees. Martinez v. City of Clovis, 1980-NMCA-078, 95 N.M. 654, 625 P.2d 583, cert. denied, 94 N.M. 674, 615 P.2d 991.

The written notice requirement of Subsection A does not apply to public employees, such as a mayor or a police chief. Frappier v. Mergler, 1988-NMCA-021, 107 N.M. 61, 752 P.2d 253.

Section inapplicable to claims only against public employee. — Where a police officer was sued individually in federal court for violation of plaintiff’s constitutional rights, the officer asked the municipality to provide a defense and gave a copy of the complaint to the municipal attorney; the municipality refused to provide a defense; the municipality had actual notice of the federal action and was asked to provide a defense within the time for filing an answer to the complaint; the municipality did not dispute that the officer acted within the scope of the officer’s employment; the officer defended the federal action pro se; and the officer and plaintiff settled the federal claims; and plaintiff did not give the municipality written notice of the incident within ninety days after the incident occurred, 41-4-16 NMSA 1978 does not require notice to be given by a claimant who sues only a governmental employee and the municipality was required to defend and indemnify the officer and pay the judgment against the officer. Niederstadt v. Town of Carrizozo, 2008-NMCA-053, 143 N.M. 786, 182 P.3d 769, cert. denied, 2008-NMCERT-003, 143 N.M. 681, 180 P.3d 1180.

Purpose of the notice requirement is four-fold: (1) to enable the person or entity to whom notice must be given, or its insurance company, to investigate the matter while the facts are accessible; (2) to question witnesses; (3) to protect against simulated or aggravated claims; and (4) to consider whether to pay the claim or to refuse it. Ferguson v. N.M. State Hwy. Comm’n, 1982-NMCA-180, 99 N.M. 194, 656 P.2d 244, cert. denied, 99 N.M. 226, 656 P.2d 889 (1983).

Plaintiff’s report failed to satisfy the purpose of the notice requirement. — Where the purpose of the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] notice requirement is to ensure that the agency allegedly at fault is notified that it may be subject to a lawsuit and to reasonably alert the agency to the necessity of investigating the merits of a potential claim against it, and where plaintiff, a resident physician at the university of New Mexico school of medicine, filed a report with residency administrators alleging that she was raped by a senior resident in the residency program, the report was insufficient to notify defendant of a likelihood that litigation may ensue; the district court did not err in dismissing plaintiff’s tort claim for failure to comply with the Tort Claim Act’s notice requirement. Herald v. Board of Regents of the Univ. of N.M., 2015-NMCA-104, cert. denied, 2015-NMCERT-009.

Contents of notice. — Subsection B does not require that the notice of a claim under this article indicate that a lawsuit will in fact be filed against the state, but, rather, it contemplates that the state must be given notice of a likelihood that litigation may ensue, in order to reasonably alert it to the necessity of investigating the merits of a potential claim against it. Smith v. State ex rel. N.M. Dep’t of Parks & Recreation, 1987-NMCA-111, 106 N.M. 368, 743 P.2d 124.

The notice required is not simply actual notice of the occurrence of an accident or injury but rather actual notice that there exists a likelihood that litigation may ensue. Dutton v. McKinley Cnty. Bd. of Comm’rs, 1991-NMCA-130, 113 N.M. 51, 822 P.2d 1134.

Although the plaintiff claimed that the department had actual notice of this claim because of: (1) the information contained in a police report, (2) information derived from the conversation between a maintenance foreman and the police officer investigating the accident, and (3) the department’s special knowledge concerning the hazards of blunt-edged guardrails, there was no evidence that the department had notice that this particular accident was likely to result in litigation against the department, or that the plaintiff considered the accident to be the department’s fault. The above factors did not satisfy the requirement of actual notice. Powell v. N.M. State Hwy. & Transp. Dep’t, 1994-NMCA-035, 117 N.M. 415, 872 P.2d 388, cert. denied, 117 N.M. 524, 873 P.2d 270.

To whom notice necessary. — In an action against the state park and recreation department, for its alleged negligence resulting in a boating accident and ensuing deaths, notice given to both the superintendent of the state park where the drownings occurred and to the boating supervisor at the park, satisfied the notice requirements specified in this section. Notice did not have to be given to the head of the department or its risk management division. Smith v. State ex rel. N.M. Dep’t of Parks & Recreation, 1987-NMCA-111, 106 N.M. 368, 743 P.2d 124.

The “actual notice” required by Subsection B is not simply actual notice of the occurrence of an accident or injury but rather, actual notice that there exists a “likelihood” that litigation may ensue. Frappier v. Mergler, 1988-NMCA-021, 107 N.M. 61, 752 P.2d 253.

Lack of notice relieving state from liability. — State was not responsible, under the Tort Claims Act, for paying a federal court judgment against a penitentiary guard when neither the state nor any of its agencies had notice of either the claim or of the federal court suit. Otero v. State, 1987-NMCA-054, 105 N.M. 731, 737 P.2d 90, cert. denied, 105 N.M. 707, 736 P.2d 985.

Notice begins to run when injury manifests itself. — Where the language of this section’s notice provisions and the statute of limitations, 41-4-15 NMSA 1978, is similar, the rule that the statute of limitations period begins to run from the time an injury manifests itself in a physically objective manner and is ascertainable is an applicable precedent to the question of when, under the Tort Claims Act, notice begins to run. Emery v. Univ. of N.M. Med. Ctr., 1981-NMCA-059,96 N.M. 144, 628 P.2d 1140.

Notice defense may not be stricken as insufficient. — The notice defense accorded by this section is a defense under which a defendant may be entitled to relief against a plaintiff’s claim and, thus, is not to be stricken as insufficient as a matter of law. Emery v. Univ. of N.M. Med. Ctr., 1981-NMCA-059, 96 N.M. 144, 628 P.2d 1140.

Notice requirements of Subsections A and B may not be applied to bar infant’s claim. — One unable to comply with a notice requirement by reason of minority is protected by the reasonableness requirements of the common law and the U.S. Const., amend. XIV, or similar provisions in the state constitution. Tafoya v. Doe, 1983-NMCA-070, 100 N.M. 328, 670 P.2d 582, cert. quashed sub nom., 100 N.M. 327, 670 P.2d 581.

The 90-day notice provision does not apply to minors who are incapable themselves of meeting that responsibility, and minors may not be held to such notice when their parents or other relatives are shown to be unable to provide notice for them. Rider v. Albuquerque Pub. Sch., 1996-NMCA-090, 122 N.M. 237, 923 P.2d 604.

Two-year statute of limitations applicable to negligence suit involving public utility’s employee. — Section 41-4-15 NMSA 1978 of the Tort Claims Act, allowing two years to bring suit, and not the one-year limitation of 37-1-24 NMSA 1978, which refers to the time for bringing suits in negligence against any city, town or village, or any officers thereof, applies to a suit for negligence of a public employee in the operation of a public utility. Cozart v. Town of Bernalillo, 1983-NMCA-053, 99 N.M. 737, 663 P.2d 713.

Notice to adjustor sufficient. — Notice to an adjustor acting for his principal, and known to the claimant to be the adjustor for the principal, is sufficient notice to satisfy the statute requiring notice to the principal. Martinez v. City of Clovis, 1980-NMCA-078, 95 N.M. 654, 625 P.2d 583, cert. denied, 94 N.M. 674, 615 P.2d 991.

Police report not “actual notice”. — An accident report prepared by the state police does not constitute actual notice to the state and to all state agencies. Mere notice of an accident will not necessarily put the government entity on notice that it may become the defendant in a lawsuit. Marrujo v. N.M. State Hwy. Transp. Dep’t, 1994-NMSC-116, 118 N.M. 753, 887 P.2d 747.

Actual notice requires notice that there exists a likelihood that litigation may ensue. — Where plaintiff filed a lawsuit asserting claims against the Bernalillo county metropolitan detention center (BCMDC) for violations of the New Mexico Tort Claims Act after a state district court remanded plaintiff to BCMDC to participate in a methadone program to decrease his level of dependence so that he would not incur life endangering withdrawal symptoms, but where plaintiff suffered life threatening withdrawal symptoms for approximately two months after being transferred to the New Mexico Corrections Department in contravention of the state district court’s order, the federal district court was without jurisdiction over the tort claims, because plaintiff did not provide written notice to Bernalillo county and there was not sufficient evidence showing that Bernalillo county had actual notice that there existed a likelihood that litigation may ensue in order to reasonably alert the county to the necessity of investigating the merits of the potential claim. Gallegos v. Bernalillo County Board of County Commissioners, 278 F.Supp.3d 1245 (D.N.M. 2017).

Report serves as notice if governmental entity made aware of claim. — Under some circumstances, a police or other report could serve as actual notice under Subsection B, but only where the report contains information which puts the governmental entity allegedly at fault on notice that there is a claim against it. Guerra, City of Las Cruces v. Garcia, 1984-NMSC-106, 102 N.M. 25, 690 P.2d 1019.

Report may serve as notice if agency has knowledge of potential liability. — When the governmental entity allegedly at fault has knowledge of the facts and circumstances of an occurrence, it may have knowledge of its own potential liability, and a particular statement by a victim that there may be a claim is not required. Lopez v. State, 1996-NMSC-071, 122 N.M. 611, 930 P.2d 146.

Notice provisions operate as statutes of limitations since they are conditions precedent to filing a suit. Ferguson v. N.M. State Hwy. Comm’n, 1982-NMCA-180, 99 N.M. 194, 656 P.2d 244, cert. denied, 99 N.M. 226, 656 P.2d 889 (1983).

If governmental entity creates condition that causes injury, notice is still required of a claim for damages. This section operates in conjunction with 41-4-15 NMSA 1978, the statute of limitations section, on the issue of a timely claim. Tafoya v. Doe, 1983-NMCA-070, 100 N.M. 328, 670 P.2d 582, cert. quashed sub nom., 100 N.M. 327, 670 P.2d 581.

Actual notice of accident. — An evidentiary hearing may be required to decide the threshold issue whether, from actual notice of an occurrence, a governmental entity was on notice that it could be subject to a claim. Lopez v. State, 1996-NMSC-071, 122 N.M. 611, 930 P.2d 146.

Burden of proof that notice requirements not met. — It is the defendants’ burden to sustain their defense that the notice requirements had not been met. Ferguson v. N.M. State Hwy. Comm’n, 1981-NMCA-071, 98 N.M. 718, 652 P.2d 740, rev’d on other grounds, 1982-NMSC-107, 98 N.M. 680, 652 P.2d 230.

Police accident report not “actual notice”. — An accident report prepared by the New Mexico state police does not constitute “actual notice,” within the meaning of Subsection B, to the state and to all state agencies. N.M. State Hwy. Comm’n v. Ferguson, 1982-NMSC-107, 98 N.M. 680, 652 P.2d 230.

Weight given statements made in workmen’s compensation suits. — Since cases arising under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] almost always present issues of first impression, statements made in workmen’s compensation (now workers’ compensation) suits regarding the reason for notice should be accorded great weight. Martinez v. City of Clovis, 1980-NMCA-078, 95 N.M. 654, 625 P.2d 583, cert. denied, 94 N.M. 674, 615 P.2d 991.

Federal preemption. — The Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] notice-of-claim requirement is preempted by the federal Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd, and, therefore, is not applicable to an Emergency Act claim. Godwin v. Mem’l Med. Ctr., 2001-NMCA-033, 130 N.M. 434, 25 P.3d 273, cert. quashed, 132 N.M. 193, 46 P.3d 100, and cert. denied, 537 U.S. 885, 123 S. Ct. 118, 154 L. Ed. 2d 144 (2002).

Summary judgment inappropriate. — Where undisputed facts of the case allow the trier of fact to draw equally logical but conflicting inferences from the facts, summary judgment on the issue of whether the department of corrections had actual notice of the occurrence as required by subsection B is not appropriate. Calloway v. N.M. Dep’t of Corr., 1994-NMCA-049, 117 N.M. 637, 875 P.2d 393, cert. denied, 118 N.M. 90, 879 P.2d 91.

Law reviews. — For article, “Constitutional Torts and the New Mexico Torts Claims Act,” see 13 N.M.L. Rev. 1 (1983).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 56 Am. Jur. 2d Municipal Corporations, Counties, and Other Political Subdivisions §§ 680, 719, 737, 760, 773, 776, 782.

Attorney’s mistake or neglect as excuse for failing to file timely notice of tort claim against state or local governmental unit, 55 A.L.R.3d 930.

Actual notice or knowledge by governmental body or officer of injury or incident resulting in injury as constituting required claim or notice of claim for injury – modern status, 7 A.L.R.4th 1063.

Local government tort liability: minority status as affecting notice of claim requirement, 58 A.L.R.4th 402.

Insufficiency of notice of claim against municipality as regards statement of place where accident occurred, 69 A.L.R.4th 484.

Complaint as satisfying requirement of notice of claim upon states, municipalities, and other political subdivisions, 45 A.L.R.5th 109.

Persons or entities upon whom notice of injury or claim against state or state agencies may or must be served, 45 A.L.R.5th 173.

Sufficiency of notice of claim against local governmental unit as regards identity, name, address, and residence of claimant, 53 A.L.R.5th 617.

Sufficiency of notice of claim against local political entity as regards time when accident occurred, 57 A.L.R.5th 689.

Waiver of, or estoppel to assert, failure to give or defects in notice of claim against state or local political subdivision – modern status, 64 A.L.R.5th 519.

63 C.J.S. Municipal Corporations §§ 922 to 930; 81A C.J.S. States § 310.

§ 50-e. Notice of claim. 1. When service required; time for service;
upon whom service required.

(a) In any case founded upon tort where a notice of claim is required
by law as a condition precedent to the commencement of an action or
special proceeding against a public corporation, as defined in the
general construction law, or any officer, appointee or employee thereof,
the notice of claim shall comply with and be served in accordance with
the provisions of this section within ninety days after the claim
arises; except that in wrongful death actions, the ninety days shall run
from the appointment of a representative of the decedent’s estate.

(b) Service of the notice of claim upon an officer, appointee or
employee of a public corporation shall not be a condition precedent to
the commencement of an action or special proceeding against such person.
If an action or special proceeding is commenced against such person, but
not against the public corporation, service of the notice of claim upon
the public corporation shall be required only if the corporation has a
statutory obligation to indemnify such person under this chapter or any
other provision of law.

2. Form of notice; contents. The notice shall be in writing, sworn to
by or on behalf of the claimant, and shall set forth: (1) the name and
post-office address of each claimant, and of his attorney, if any; (2)
the nature of the claim; (3) the time when, the place where and the
manner in which the claim arose; and (4) the items of damage or injuries
claimed to have been sustained so far as then practicable but a notice
with respect to a claim against a municipal corporation other than a
city with a population of one million or more persons shall not state
the amount of damages to which the claimant deems himself entitled,
provided, however, that the municipal corporation, other than a city
with a population of one million or more persons, may at any time
request a supplemental claim setting forth the total damages to which
the claimant deems himself entitled. A supplemental claim shall be
provided by the claimant within fifteen days of the request. In the
event the supplemental demand is not served within fifteen days, the
court, on motion, may order that it be provided by the claimant.

3. How served; when service by mail complete; defect in manner of
service; return of notice improperly served.

(a) The notice shall be served on the public corporation against which
the claim is made by delivering a copy thereof personally, or by
registered or certified mail, to the person designated by law as one to
whom a summons in an action in the supreme court issued against such
corporation may be delivered, or to an attorney regularly engaged in
representing such public corporation or, in a city with a population of
over one million, by electronic means in a form and manner prescribed by
such city.

(b) Service by registered or certified mail shall be complete upon
deposit of the notice of claim, enclosed in a postpaid properly
addressed wrapper, in a post office or official depository under the
exclusive care and custody of the United States post office department
within the state.

(c) If the notice is served within the period specified by this
section, but in a manner not in compliance with the provisions of this
subdivision, the service shall be valid if the public corporation
against which the claim is made demands that the claimant or any other
person interested in the claim be examined in regard to it, or if the
notice is actually received by a proper person within the time specified
by this section, and the public corporation fail to return the notice,
specifying the defect in the manner of service, within thirty days after
the notice is received.

(d) If the notice is served within the period specified by this
section and is returned for the reason and within the time provided in
this subdivision, the claimant may serve a new notice in a manner
complying with the provisions of this subdivision within ten days after
the returned notice is received. If a new notice is so served within
that period, it shall be deemed timely served.

(e) If the notice is served by electronic means, as defined in
paragraph two of subdivision (f) of rule twenty-one hundred three of the
civil practice law and rules, it shall contain the information required
under the provisions of subdivision two of this section. In addition,
such notice shall contain the following declaration: “I certify that all
information contained in this notice is true and correct to the best of
my knowledge and belief. I understand that the willful making of any
false statement of material fact herein will subject me to criminal
penalties and civil liabilities.” Service of the notice shall be
complete upon successful transmission of the notice as indicated by an
electronic receipt provided by such city, which shall transmit an
electronic receipt number to the claimant forthwith.

(f) Service of a notice of claim on the secretary of state as agent of
any public corporation, as defined in subdivision one of section
sixty-six of the general construction law, whatsoever created or
existing by virtue of the laws of the state of New York upon whom
service of a notice of claim is required as a condition precedent to
being sued, may be made by personally delivering to and leaving with the
secretary of state or a deputy, or with any person authorized by the
secretary of state to receive such service, at the office of the
department of state in the city of Albany, duplicate copies of such
notice of claim together with the statutory fee, which fee shall be a
taxable disbursement but only in the amount equal to the portion of the
fee collected by the public corporation in accordance with subdivision
four of this section. Service on such public corporation shall be
complete when the secretary of state is so served. Within ten days after
receiving a notice of claim, the secretary of state shall either: (1)
send one of such copies by certified mail, return receipt requested, to
such public corporation, at the post office address on file in the
department of state, specified for the purpose; or (2) electronically
transmit a copy to such public corporation at the electronic address on
file with the department of state specified for that purpose; or (3)
transmit a copy to such public corporation by any other such means or
procedure established by the secretary of state, provided that such
other means or procedure of transmittal must be verifiable.

4. Requirements of section exclusive except as to conditions precedent
to liability for certain defects or snow or ice. No other or further
notice, no other or further service, filing or delivery of the notice of
claim, and no notice of intention to commence an action or special
proceeding, shall be required as a condition to the commencement of an
action or special proceeding for the enforcement of the claim; provided,
however, that nothing herein contained shall be deemed to dispense with
the requirement of notice of the defective, unsafe, dangerous or
obstructed condition of any street, highway, bridge, culvert, sidewalk
or crosswalk, or of the existence of snow or ice thereon, where such
notice now is, or hereafter may be, required by law, as a condition
precedent to liability for damages or injuries to person or property
alleged to have been caused by such condition, and the failure or
negligence to repair or remove the same after the receipt of such
notice.

5. Application for leave to serve a late notice.

Upon application, the court, in its discretion, may extend the time to
serve a notice of claim specified in paragraph (a) of subdivision one of
this section, whether such service was made upon a public corporation or
the secretary of state. The extension shall not exceed the time limited
for the commencement of an action by the claimant against the public
corporation. In determining whether to grant the extension, the court
shall consider, in particular, whether the public corporation or its
attorney or its insurance carrier acquired actual knowledge of the
essential facts constituting the claim within the time specified in
subdivision one of this section or within a reasonable time thereafter.
The court shall also consider all other relevant facts and
circumstances, including: whether the claimant was an infant, or
mentally or physically incapacitated, or died before the time limited
for service of the notice of claim; whether the claimant failed to serve
a timely notice of claim by reason of his justifiable reliance upon
settlement representations made by an authorized representative of the
public corporation or its insurance carrier; whether the claimant in
serving a notice of claim made an excusable error concerning the
identity of the public corporation against which the claim should be
asserted; if service of the notice of claim is attempted by electronic
means pursuant to paragraph (e) of subdivision three of this section,
whether the delay in serving the notice of claim was based upon the
failure of the computer system of the city or the claimant or the
attorney representing the claimant; that such claimant or attorney, as
the case may be, submitted evidence or proof as is reasonable showing
that (i) the submission of the claim was attempted to be electronically
made in a timely manner and would have been completed but for the
failure of the computer system utilized by the sender or recipient, and
(ii) that upon becoming aware of both the failure of such system and the
failure of the city to receive such submission, the claimant or attorney
had insufficient time to make such claim within the permitted time
period in a manner as otherwise prescribed by law; and whether the delay
in serving the notice of claim substantially prejudiced the public
corporation in maintaining its defense on the merits.

An application for leave to serve a late notice shall not be denied on
the ground that it was made after commencement of an action against the
public corporation.

6. Mistake, omission, irregularity or defect. At any time after the
service of a notice of claim and at any stage of an action or special
proceeding to which the provisions of this section are applicable, a
mistake, omission, irregularity or defect made in good faith in the
notice of claim required to be served by this section, not pertaining to
the manner or time of service thereof, may be corrected, supplied or
disregarded, as the case may be, in the discretion of the court,
provided it shall appear that the other party was not prejudiced
thereby.

7. Applications under this section. All applications under this
section shall be made to the supreme court or to the county court: (a)
in a county where the action may properly be brought for trial, (b) if
an action to enforce the claim has been commenced, in the county where
the action is pending, or (c) in the event that there is no motion term
available in any of the counties specified in clause (a) or (b) hereof,
in any adjoining county. Where the application is for leave to serve a
late notice of claim, it shall be accompanied by a copy of the proposed
notice of claim.

8. Inapplicability of section. (a) This section shall not apply to
claims arising under the provisions of the workers’ compensation law,
the volunteer firefighters’ benefit law, or the volunteer ambulance
workers’ benefit law or to claims against public corporations by their
own infant wards.

(b) This section shall not apply to any claim made for physical,
psychological, or other injury or condition suffered as a result of
conduct which would constitute a sexual offense as defined in article
one hundred thirty of the penal law committed against a child less than
eighteen years of age, incest as defined in section 255.27, 255.26 or
255.25 of the penal law committed against a child less than eighteen
years of age, or the use of a child in a sexual performance as defined
in section 263.05 of the penal law committed against a child less than
eighteen years of age.

How to file a claim against a government elected or appointed official in North Carolina. 

How to file a claim against a government elected or appointed official in North Dakota. 

Ohio Revised Code Chapter 2743 sets out the rules for bringing an injury claim (called an “award of reparations”) after an accident in which the state or one of its employees might be liable.

First, section 2743.02 of the ORC waives the state’s immunity from liability and says that the state consents to be sued for negligence in court in the same ways that a private party could be sued.

However, the statute also limits the ways in which the government can be sued, so this “waiver” of immunity is not as broad as it looks. Section 2743.03(A)(3)(a) says that, in order to bring a lawsuit against the state, the injured person must have a “special relationship” to the government. (We’ll talk about what counts as a “special relationship” below.) It also says that the claim must be filed in the state’s Court of Claims — not in a county or municipal court (as you would with a standard personal injury claim).

State immunity is based on a very old rule: the rule of “sovereign immunity,” which dates back to medieval England, when the law prevented people from suing the king for various acts or decisions — even if those acts or decisions ended up harming individuals.

How to file a claim against a government elected or appointed official in Oklahoma

ORS 30.275

Notice of claim

 

No action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 (Definitions for ORS 30.260 to 30.300) to 30.300 (ORS 30.260 to 30.300 exclusive) shall be maintained unless notice of claim is given as required by this section.

(2)Notice of claim shall be given within the following applicable period of time, not including the period, not exceeding 90 days, during which the person injured is unable to give the notice because of the injury or because of minority, incompetency or other incapacity:

(a)For wrongful death, within one year after the alleged loss or injury.

(b)For all other claims, within 180 days after the alleged loss or injury.

(3)Notice of claim required by this section is satisfied by:

(a)Formal notice of claim as provided in subsections (4) and (5) of this section;

(b)Actual notice of claim as provided in subsection (6) of this section;

(c)Commencement of an action on the claim by or on behalf of the claimant within the applicable period of time provided in subsection (2) of this section; or

(d)Payment of all or any part of the claim by or on behalf of the public body at any time.

(4)Formal notice of claim is a written communication from a claimant or representative of a claimant containing:

(a)A statement that a claim for damages is or will be asserted against the public body or an officer, employee or agent of the public body;

(b)A description of the time, place and circumstances giving rise to the claim, so far as known to the claimant; and

(c)The name of the claimant and the mailing address to which correspondence concerning the claim may be sent.

(5)Formal notice of claim shall be given by mail or personal delivery:

(a)If the claim is against the state or an officer, employee or agent thereof, to the office of the Director of the Oregon Department of Administrative Services.

(b)If the claim is against a local public body or an officer, employee or agent thereof, to the public body at its principal administrative office, to any member of the governing body of the public body, or to an attorney designated by the governing body as its general counsel.

(6)Actual notice of claim is any communication by which any individual to whom notice may be given as provided in subsection (5) of this section or any person responsible for administering tort claims on behalf of the public body acquires actual knowledge of the time, place and circumstances giving rise to the claim, where the communication is such that a reasonable person would conclude that a particular person intends to assert a claim against the public body or an officer, employee or agent of the public body. A person responsible for administering tort claims on behalf of a public body is a person who, acting within the scope of the person’s responsibility, as an officer, employee or agent of a public body or as an employee or agent of an insurance carrier insuring the public body for risks within the scope of ORS 30.260 (Definitions for ORS 30.260 to 30.300) to 30.300 (ORS 30.260 to 30.300 exclusive), engages in investigation, negotiation, adjustment or defense of claims within the scope of ORS 30.260 (Definitions for ORS 30.260 to 30.300) to 30.300 (ORS 30.260 to 30.300 exclusive), or in furnishing or accepting forms for claimants to provide claim information, or in supervising any of those activities.

(7)In an action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 (Definitions for ORS 30.260 to 30.300) to 30.300 (ORS 30.260 to 30.300 exclusive), the plaintiff has the burden of proving that notice of claim was given as required by this section.

(8)The requirement that a notice of claim be given under subsections (1) to (7) of this section does not apply if:

(a)(A) The claimant was under the age of 18 years when the acts or omissions giving rise to a claim occurred;

(B)The claim is against the Department of Human Services or the Oregon Youth Authority; and

(C)The claimant was in the custody of the Department of Human Services pursuant to an order of a juvenile court under ORS 419B.150 (When protective custody authorized), 419B.185 (Evidentiary hearing), 419B.337 (Commitment to custody of Department of Human Services) or 419B.527 (Disposition of ward after termination), or was in the custody of the Oregon Youth Authority under the provisions of ORS 419C.478 (Commitment to Oregon Youth Authority or Department of Human Services), 420.011 (Admissions to youth correction facilities) or 420A.040 (Provision of juvenile corrections programs and services to tribal youth offender), when the acts or omissions giving rise to a claim occurred.

(b)The claim is against a private, nonprofit organization that provides public transportation services described under ORS 30.260 (Definitions for ORS 30.260 to 30.300) (4)(d).

(9)Except as provided in ORS 12.120 (Action on escape), 12.135 (Action for damages from construction, alteration or repair of improvement to real property) and 659A.875 (Time limitations), but notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action, an action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 (Definitions for ORS 30.260 to 30.300) to 30.300 (ORS 30.260 to 30.300 exclusive) shall be commenced within two years after the alleged loss or injury.

§ 5522.  Six months limitation.

(a)  Notice prerequisite to action against government unit.–

(1)  Within six months from the date that any injury was sustained or any cause of action accrued, any person who is about to commence any civil action or proceeding within this Commonwealth or elsewhere against a government unit for damages on account of any injury to his person or property under Chapter 85 (relating to matters affecting government units) or otherwise shall file in the office of the government unit, and if the action is against a Commonwealth agency for damages, then also file in the office of the Attorney General, a statement in writing, signed by or in his behalf, setting forth:

(i)  The name and residence address of the person to whom the cause of action has accrued.

(ii)  The name and residence address of the person injured.

(iii)  The date and hour of the accident.

(iv)  The approximate location where the accident occurred.

(v)  The name and residence or office address of any attending physician.

(2)  If the statement provided for by this subsection is not filed, any civil action or proceeding commenced against the government unit more than six months after the date of injury to person or property shall be dismissed and the person to whom any such cause of action accrued for any injury to person or property shall be forever barred from proceeding further thereon within this Commonwealth or elsewhere. The court shall excuse failure to comply with this requirement upon a showing of reasonable excuse for failure to file such statement.

(3)  In the case of a civil action or proceeding against a government unit other than the Commonwealth government:

(i)  The time for giving such written notice does not include the time during which an individual injured is unable, due to incapacitation or disability from the injury, to give notice, not exceeding 90 days of incapacity.

(ii)  If the injuries to an individual result in death, the time for giving notice shall commence with such death.

(iii)  Failure to comply with this subsection shall not be a bar if the government unit had actual or constructive notice of the incident or condition giving rise to the claim of a person.

(b)  Commencement of action required.–The following actions and proceedings must be commenced within six months:

(1)  An action against any officer of any government unit for anything done in the execution of his office, except an action subject to another limitation specified in this subchapter.

(2)  A petition for the establishment of a deficiency judgment following execution and delivery of the sheriff’s deed for the property sold in connection with the execution proceedings referenced in the provisions of section 8103(a) (relating to deficiency judgments).

(3)  (Repealed).

(4)  An action under section 4563(c) (relating to civil remedy available).

(5)  An action or proceeding to set aside a judicial sale of property.

(6)  A petition for redetermination of fair market value pursuant to section 8103(f.1)(4) following execution and delivery of the sheriff’s deed for the property sold in connection with the execution proceedings referenced under section 8103.

(c)  Exception.–This section shall not apply to any civil action or proceeding brought under section 8522(b)(10) (relating to exceptions to sovereign immunity) or 8542(b)(9) (relating to exceptions to governmental immunity).

(Oct. 5, 1980, P.L.693, No.142, eff. 60 days; Dec. 20, 1982, P.L.1409, No.326, eff. 60 days; July 9, 1992, P.L.507, No.97, eff. one year; Dec. 21, 1998, P.L.1082, No.144, eff. imd.; Nov. 24, 2004, P.L.1243, No.152, eff. 60 days; Mar. 14, 2014, P.L.46, No.20, eff. imd.; Nov. 26, 2019, P.L.641, No.87, eff. Nov. 26, 2019)

 

2019 Amendment.  Act 87 added subsec. (c). See sections 9 and 10(3) of Act 87 in the appendix to this title for special provisions relating to severability and applicability.

2014 Amendment.  Act 20 reenacted subsec. (b)(2) and (6), retroactive to January 24, 2005.

2013 Unconstitutionality.  Act 152 of 2004 was declared unconstitutional. Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013). The unconstitutionality took effect March 17, 2014.

1992 Repeal.  Act 97 repealed subsec. (b)(3).

1982 Amendment.  Act 326 amended subsecs. (a)(2) and (b). Section 403 of Act 326 provided that the amendments to Chapter 55 effected by Act 326 shall apply only to causes of action which accrue after the effective date of Act 326.

1980 Amendment.  Act 142 added present section 5522 and repealed former section 5522 relating to the same subject matter. Section 221(i)(2) of Act 142 provided that, notwithstanding 1 Pa.C.S. § 1957 (relating to ineffective provisions not revived by reenactment in amendatory statutes), it is hereby declared to be the intent of paragraph (1) to restore 42 Pa.C.S. § 5522 to its status prior to the repeal effected by section 802(b) of the act of November 26, 1978, P.L.1399, No.330, known as the Political Subdivision Tort Claims Act, except as otherwise expressly provided by such section as reenacted and amended hereby.

Cross References.  Section 5522 is referred to in section 8103 of this title.

How to file a claim against he government elected or appointed officials in Rhode Island 

SECTION 38-59-10. Proof of loss forms required to be furnished.

When an insurer under an insurance policy requires a written proof of loss after the notice of the loss has been given by the insured or beneficiary, the insurer or its representative shall furnish a blank to be used for that purpose. If the forms are not furnished within twenty days after the receipt of the notice, the claimant is considered to have complied with the requirements of the policy as to proof of loss upon submitting within the time fixed in the policy for filing proofs of loss written proof covering the occurrence, character, and extent of the loss for which claim is made. The twenty-day period after notice of loss to furnish forms applies to all types of insurance unless a lesser time period is specifically provided by law.

HISTORY: Former 1976 Code Section 38-59-10 [1976 Act No. 673; 1976 Act No. 745 Section 1] recodified as Section 38-79-10 by 1987 Act No. 155, Section 1; Former 1976 Code Section 38-9-300 [1947 (45) 322; 1952 Code Section 37-166; 1962 Code Section 37-166] recodified as Section 38-59-10 by 1987 Act No. 155, Section 1.

SECTION 38-59-20. Improper claim practices.

Any of the following acts by an insurer doing accident and health insurance, property insurance, casualty insurance, surety insurance, marine insurance, or title insurance business, if committed without just cause and performed with such frequency as to indicate a general business practice, constitutes improper claim practices:

(1) Knowingly misrepresenting to insureds or third-party claimants pertinent facts or policy provisions relating to coverages at issue or providing deceptive or misleading information with respect to coverages.

(2) Failing to acknowledge with reasonable promptness pertinent communications with respect to claims arising under its policies, including third-party claims arising under liability insurance policies.

(3) Failing to adopt and implement reasonable standards for the prompt investigation and settlement of claims, including third-party liability claims, arising under its policies.

(4) Not attempting in good faith to effect prompt, fair, and equitable settlement of claims, including third-party liability claims, submitted to it in which liability has become reasonably clear.

(5) Compelling policyholders or claimants, including third-party claimants under liability policies, to institute suits to recover amounts reasonably due or payable with respect to claims arising under its policies by offering substantially less than the amounts ultimately recovered through suits brought by the claimants or through settlements with their attorneys employed as the result of the inability of the claimants to effect reasonable settlements with the insurers.

(6) Offering to settle claims, including third-party liability claims, for an amount less than the amount otherwise reasonably due or payable based upon the possibility or probability that the policyholder or claimant would be required to incur attorneys’ fees to recover the amount reasonably due or payable.

(7) Invoking or threatening to invoke policy defenses or to rescind the policy as of its inception, not in good faith and with a reasonable expectation of prevailing with respect to the policy defense or attempted rescission, but for the primary purpose of discouraging or reducing a claim, including a third-party liability claim.

(8) Any other practice which constitutes an unreasonable delay in paying or an unreasonable failure to pay or settle in full claims, including third-party liability claims, arising under coverages provided by its policies.

HISTORY: Former 1976 Code Section 38-37-1110 [1962 Code Section 37-591.56; 1974 (58) 2718] recodified as Section 38-59-20 by 1987 Act No. 155, Section 1.

SECTION 38-59-25. Coverage decisions not constituting practice of medicine.

A determination of medical necessity of a decision affecting the diagnosis and/or treatment of a patient is not the practice of medicine, provided:

(A) it is a coverage decision denying health care services by an insurer that is based on a finding that the provision of a particular service is included or excluded as a covered benefit under the terms and conditions of the health care service plan contract; or

(B) it is a coverage decision approving a covered benefit for health care services that provides for the diagnosis, treatment, cure, or relief of a health condition, illness, injury, or disease; or

(C) it is a coverage decision denying coverage for a covered benefit for a health care service that provides diagnosis, treatment, cure, or relief of a health condition, illness, injury, or disease excluding, except where otherwise provided for by law, experimental, investigational, or cosmetic purposes, if the denial is issued by a licensed physician who has not wilfully and knowingly, or with reckless disregard or gross negligence, or with the intent solely to delay payment of the claim in bad faith, ignored nationally recognized protocols or standards of medical care in rendering such a decision. A good faith request for records or additional information is not a delay for purposes of this section. A person providing medical necessity review services for a health insurer or health maintenance organization who is subject to an inquiry regarding whether the person has been practicing medicine pursuant to this section has the right to remove the case to the Administrative Law Court upon petition of the person. If the Administrative Law Court determines that a complaint is filed, pursuant to this section, to harass or intimidate a person or is otherwise not based on a good faith belief that the provisions of this section are being violated, the defendant is entitled to an award of attorney’s fees and the costs of defending the case.

HISTORY: 2008 Act No. 411, Section 7, eff June 25, 2008.

SECTION 38-59-30. Notice and hearing by director or designee; penalties.

If, after due notice and hearing, the director or his designee determines that the insurer has engaged in any of the improper claim practices defined in Section 38-59-20, he shall order the insurer to cease and desist from the practice and may impose a penalty as provided in Section 38-2-10. If the penalty is imposed, the penalty may not be considered a cost of the insurer for purposes of determining whether or not the rates of the insurer warrant adjustment.

HISTORY: Former 1976 Code Section 38-37-1120 [1962 Code Section 37-591.57; 1974 (58) 2718] recodified as Section 38-59-30 by 1987 Act No. 155, Section 1; 1988 Act No. 374, Section 30; 1993 Act No. 181, Section 723.

SECTION 38-59-40. Liability for attorneys’ fees where insurer has refused to pay claim.

(1) In the event of a claim, loss, or damage which is covered by a policy of insurance or a contract of a nonprofit hospital service plan or a medical service corporation and the refusal of the insurer, plan, or corporation to pay the claim within ninety days after a demand has been made by the holder of the policy or contract and a finding on suit of the contract made by the trial judge that the refusal was without reasonable cause or in bad faith, the insurer, plan, or corporation is liable to pay the holder, in addition to any sum or any amount otherwise recoverable, all reasonable attorneys’ fees for the prosecution of the case against the insurer, plan, or corporation. The amount of reasonable attorneys’ fees must be determined by the trial judge and the amount added to the judgment. The amount of the attorneys’ fees may not exceed one-third of the amount of the judgment.

(2) If attorneys’ fees are allowed and, on appeal by the defendant, the judgment is affirmed, the Supreme Court or the court of appeals shall allow to the respondent an additional sum as the court adjudges reasonable as attorneys’ fees of the respondent on the appeal.

(3) Nothing in this section may be construed to alter or affect the Tyger River Pine Co. v. Maryland Casualty Co., 161 SE 491, 163 SC 229, doctrine.

(4) This section applies to cases filed or removed to federal court and cases appealed in the federal court system.

HISTORY: Former 1976 Code Section 38-9-320 [1962 Code Section 37-167.1; 1972 (57) 2203] recodified as Section 38-59-40 by 1987 Act No. 155, Section 1; 1989 Act No. 148, Section 50; 1999 Act No. 55, Section 38.

SECTION 38-59-50. Payment or settlement of benefits in merchandise or services prohibited.

It is unlawful for an insurer to make payment or settlement of benefits arising under life, endowment, accident, health, or hospitalization policies written by the insurer in merchandise, services rendered or agreed to be rendered, or to issue a policy which provides for settlement in merchandise or services rendered or to be rendered.

An insurer violating this section pays a penalty of ten times the amount of the policy, certificate, or other evidence of insurance to be collected in a suit by the policyholder or his legal representatives or beneficiary. An officer, agent, or servant of an insurer who violates this section is guilty of a misdemeanor and, upon conviction, must be fined in the discretion of the court or imprisoned not more than three years, or both.

HISTORY: Former 1976 Code Section 38-9-330 [1947 (45) 322; 1952 Code Section 37-168; 1958 (50) 1554; 1962 Code Section 37-168] recodified as Section 38-59-50 by 1987 Act No. 155, Section 1; 1988 Act No. 374, Section 31; 1993 Act No. 184, Section 220.

ARTICLE 2

 

South Carolina Health Care Financial Recovery and Protection Act


SECTION 38-59-200. Citation of article.

This article may be cited as the “South Carolina Health Care Financial Recovery and Protection Act”.

HISTORY: 2008 Act No. 356, Section 1, eff one year after approval by the Governor (approved June 11, 2008).

SECTION 38-59-210. Definitions.

As used in this article:

(1) “Insurer” means an insurance company, a health maintenance organization, and any other entity providing health insurance coverage, as defined in Section 38-71-670(6), which is licensed to engage in the business of insurance in this State and which is subject to state insurance regulation.

(2) “Health care services” means services included in furnishing an individual medical care or hospitalization, or services incident to the furnishing of medical care or hospitalization, and other services to prevent, alleviate, cure, or heal human illness, injury, or physical disability.

(3) “Health maintenance organization” means an organization as defined in Section 38-33-20(8).

(4) “Health insurance plan” means a health insurance policy or health benefit plan offered by a health insurer or a health maintenance organization that provides health insurance coverage, as defined in Section 38-71-670(6).

(5) “Physician” means a doctor of medicine or doctor of osteopathic medicine licensed by the South Carolina Board of Medical Examiners.

(6) “Provider” means a physician, hospital, or other person properly licensed, certified, or permitted, where required, to furnish health care services.

(7) “Participating provider” means a provider who provides covered health care services to an insured or a member pursuant to a contract with an insurer or health insurance plan.

(8) “Clean claim” means an eligible electronic or paper claim for reimbursement that:

(a) is received by the insurer within one hundred twenty business days of the date the health care services at issue were performed;

(b)(i) when submitted via paper has all the elements of the standardized CMS 1500 or UB 04 claim form, or the successor of each as either may be amended from time to time; or

(ii) when submitted via an electronic transaction, uses only permitted standard code sets and has all the elements of the standard electronic formats as required by the Health Insurance Portability and Accountability Act of 1996 and other federal and state regulatory authority;

(c) is for health care services covered by the health insurance plan and rendered to an insured person by a provider eligible for reimbursement under the health insurance plan;

(d) has any corresponding referral that may be required for the applicable claim;

(e) is a claim for which the insurer is the primary payor, or for which the insurer’s responsibility as a secondary payor has been clearly established;

(f) has no material defect, error, or impropriety that would affect the adjudication of the claim;

(g) includes all required substantiating documentation or coding;

(h) is not subject to any particular circumstance that the insurer reasonably believes, subject to review by the Department of Insurance, would prevent accurate or timely payment from being made on the claim under the terms of the health insurance plan, the participating provider agreement, or the insurer’s published filing requirements; and

(i) is under a health insurance plan for which the insurer has been timely paid all applicable premiums.

(9) “Force majeure” means any act of God, governmental act, act of terrorism, war, fire, flood, earthquake, hurricane, or other natural disaster, explosion or civil commotion.

HISTORY: 2008 Act No. 356, Section 1, eff one year after approval by the Governor (approved June 11, 2008).

SECTION 38-59-220. Requesting fee schedule from insurer; confidentiality.

(A) Within six months of the effective date of this article, each insurer, upon written request from a physician who is also a participating provider will provide, by CD-ROM, or electronically at the insurer’s option, the fee schedule that is contracted with that physician for up to 100 CPT(r) Codes customarily and routinely used by the specialty type of such physician. Each physician may request from an insurer an updated fee schedule no more than two times annually.

(B) A physician requesting a fee schedule pursuant to subsection (A) may elect to receive a hard copy of the fee schedule in lieu of the foregoing; however, the insurer may charge the physician a reasonable fee to cover the increased administrative costs of providing the hard copy.

(C) The physician shall keep all fee schedule information provided pursuant to this section confidential. The physician shall disclose fee schedule information only to those employees of the physician who have a reasonable need to access this information in order to perform their duties for the physician and who have been placed under an obligation to keep this information confidential. Any failure of a physician’s office to abide by this subsection shall result in the physician’s forfeiture of the right to receive fee schedules pursuant to this section and at the option of the insurer may constitute a breach of contract by the physician.

(D) Nothing in this section prohibits an insurer from basing actual compensation to the physician on the insurer’s maximum allowable amount or other contract adjustments, including those stated in the patient’s plan of benefits, or both.

HISTORY: 2008 Act No. 356, Section 1, eff one year after approval by the Governor (approved June 11, 2008).

SECTION 38-59-230. Time frame for payment of clean claims; acknowledging receipt of claim; processing of electronic claims by billing service.

(A) An insurer shall direct the issuance of a check or an electronic funds transfer in payment for a clean claim that is submitted via paper within forty business days following the later of the insurer’s receipt of the claim or the date on which the insurer is in receipt of all information needed and in a format required for the claim to constitute a clean claim and is in receipt of all documentation which may be requested by an insurer which is reasonably needed by the insurer:

(1) to determine that such claim does not contain any material defect, error, or impropriety; or

(2) to make a payment determination.

(B) An insurer shall direct the issuance of a check or an electronic funds transfer in payment for a clean claim that is submitted electronically within twenty business days following the later of the insurer’s receipt of the claim or the date on which the insurer is in receipt of all information needed and in a format required for the claim to constitute a clean claim and is in receipt of all documentation which may be requested by an insurer which is reasonably needed by the insurer:

(1) to determine that such claim does not contain any material defect, error, or impropriety; or

(2) to make a payment determination.

(C) An insurer shall affix to or on paper claims, or otherwise maintain a system for determining, the date claims are received by the insurer. An insurer shall send an electronic acknowledgement of claims submitted electronically either to the provider or the provider’s designated vendor for the exchange of electronic health care transactions. The acknowledgement must identify the date claims are received by the insurer. If an insurer determines that there is any defect, error, or impropriety in a claim that prevents the claim from entering the insurer’s adjudication system, the insurer shall provide notice of the defect or error either to the provider or the provider’s designated vendor for the exchange of electronic health care transactions within twenty business days of the submission of the claim if it was submitted electronically or within forty business days of the claim if it was submitted via paper. Nothing contained in this section is intended or may be construed to alter an insurer’s ability to request clinical information reasonably necessary for the proper adjudication of the claim or for the purpose of investigating fraudulent or abusive billing practices.

(D) A clearinghouse, billing service, or any other vendor that contracts with a provider to deliver health care claims to an insurer on the provider’s behalf is prohibited from converting electronic claims received from the provider into paper claims for submission to the insurer. A violation of this subsection constitutes an unfair trade practice under Chapter 5, Title 39, and individual providers and insurers injured by violations of this subsection have an action for damages as set forth in Section 39-5-140.

HISTORY: 2008 Act No. 356, Section 1, eff one year after approval by the Governor (approved June 11, 2008).

SECTION 38-59-240. Interest on payments later than applicable period; exceptions.

(A) For each clean claim with respect to which an insurer has directed the issuance of a check or the electronic funds transfer later than the applicable period specified in Section 38-59-230, the insurer shall pay interest in the same manner and at the same rate set forth in Section 34-31-20(A) on the balance due on each claim computed from the twenty-first or the forty-first business day, as appropriate, based on the circumstances described in Section 38-59-230, up to the date on which the insurer directs the issuance of the check or the electronic funds transfer for payment of the clean claim. At the insurer’s election, interest paid pursuant to this section must be included in the claim payment check or wire transfer or must be remitted periodically, but at least quarterly, in a separate check or wire transfer along with a report detailing the claims for which interest is being paid.

(B) No insurer has an obligation to make any interest payment pursuant to subsection (A):

(1) with respect to any clean claim if within twenty business days of the submission of an original claim submitted electronically or within forty business days of an original claim submitted via paper, a duplicate claim is submitted while the adjudication of the original claim is still in process;

(2) to any participating provider who balance bills a plan member in violation of the participating provider’s agreement with the insurer;

(3) with respect to any time period during which a force majeure prevents the adjudication of claims; or

(4) when payment is made to a plan member.

HISTORY: 2008 Act No. 356, Section 1, eff one year after approval by the Governor (approved June 11, 2008).

SECTION 38-59-250. Initiation of overpayment recovery efforts.

(A)(1) An insurer shall initiate any overpayment recovery efforts by sending a written notice to the provider at least thirty business days prior to engaging in the overpayment recovery efforts, other than for recovery of duplicate payments or other similar adjustments relating to:

(a) claims where a provider has received payment for the same services from another payor whose obligation is primary; or

(b) timing or sequence of claims for the same insured that are received by the insurer out of chronological order in which the services were performed.

(2) The written notice required by this section shall include:

(a) the patient’s name;

(b) the service date;

(c) the payment amount received by the provider;

(d) a reasonably specific explanation of the change in payment; and

(e) if the claim is submitted pursuant to a provider contract that includes an appeals process, the telephone number or a mailing address through which the provider may initiate an appeal, and the deadline by which an appeal must be received.

(B) An insurer may not initiate overpayment recovery efforts more than eighteen months after the initial payment was received by the provider; however, this time limit does not apply to the initiation of overpayment recovery efforts:

(1) based upon a reasonable belief of fraud or other intentional misconduct;

(2) required by a self-insured plan; or

(3) required by a state or federal government program.

HISTORY: 2008 Act No. 356, Section 1, eff one year after approval by the Governor (approved June 11, 2008); 2012 Act No. 243, Section 1, eff September 16, 2012.

SECTION 38-59-260. Application of requirements of article.

The requirements of this article do not apply to claims that are processed under any national account delivery program in which an insurer participates but is not solely responsible for the processing and payment of the claims, or claims for services under a program offered or sponsored by any state or federal governmental entity other than in its capacity as an employer, or both.

HISTORY: 2008 Act No. 356, Section 1, eff one year after approval by the Governor (approved June 11, 2008).

SECTION 38-59-270. Enforcement; cease and desist orders; penalty; private right of action.

The Department of Insurance shall enforce the provisions of this article. If, after due notice and hearing, the Director of the Department of Insurance or his designee determines that an insurer has failed to meet the obligations imposed by this article, he shall order the insurer to cease and desist from the practice, to correct any errant business practices, and to make any payments due, including applicable interest. If an insurer does not comply with the order within thirty days, the director or his designee may then impose a penalty as provided in Section 38-2-10. Nothing in this article may be construed to create a private right of action to enforce the specific provisions of this article.

3-21-3Persons to whom notice must be given.

Notice shall be given to the following officers as applicable:

(1)    In the case of the State of South Dakota, to the attorney general and the commissioner of administration;

(2)    In the case of a county, to the county auditor;

(3)    In the case of a municipality, to the mayor or city finance officer;

(4)    In the case of a school district, to the superintendent of schools;

(5)    In the case of other public entities, to the chief executive officer or secretary of the governing board.

3-21-5Effect of inaccuracy in notice.

The notice required by § 3-21-2 may not be deemed invalid or insufficient by reason of any inaccuracy in stating the time, place or cause of the injury if it is shown that the claimant had no intention to mislead and that the public entity was not misled.

3-21-7No waiver of sovereign immunity.

Nothing in this chapter shall be deemed to waive the sovereign immunity of the public entities of the State of South Dakota or of their employees.

3-21-11Who are agents of state for purposes of § 21-32-17.

Any employee, agent, or board member of any authority established by state law are agents of the State of South Dakota for the purposes of § 21-32-17.

 

State law provides a method for persons who have been allegedly damaged by the State to file a claim for documented damages. If appropriate, the claimant may be compensated for their loss or damage.

Claims are paid through the Risk Management Fund. This fund is supported by premiums paid by each State department, agency and institution based on actuarial analysis.

The Division contracts with CorVel Corporation, a claims management company, for the processing of claims against the State.

Follow the direction of the state for filing your claim. 

Sec. 101.001. DEFINITIONS. In this chapter:

(1) “Emergency service organization” means:

(A) a volunteer fire department, rescue squad, or an emergency medical services provider that is:

(i) operated by its members; and

(ii) exempt from state taxes by being listed as an exempt organization under Section 151.310 or 171.083, Tax Code; or

(B) a local emergency management or homeland security organization that is:

(i) formed and operated as a state resource in accordance with the statewide homeland security strategy developed by the governor under Section 421.002, Government Code; and

(ii) responsive to the Texas Division of Emergency Management in carrying out an all-hazards emergency management program under Section 418.112, Government Code.

(2) “Employee” means a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.

(3) “Governmental unit” means:

(A) this state and all the several agencies of government that collectively constitute the government of this state, including other agencies bearing different designations, and all departments, bureaus, boards, commissions, offices, agencies, councils, and courts;

(B) a political subdivision of this state, including any city, county, school district, junior college district, levee improvement district, drainage district, irrigation district, water improvement district, water control and improvement district, water control and preservation district, freshwater supply district, navigation district, conservation and reclamation district, soil conservation district, communication district, public health district, and river authority;

(C) an emergency service organization; and

(D) any other institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution.

(4) “Motor-driven equipment” does not include:

(A) equipment used in connection with the operation of floodgates or water release equipment by river authorities created under the laws of this state; or

(B) medical equipment, such as iron lungs, located in hospitals.

(5) “Scope of employment” means the performance for a governmental unit of the duties of an employee’s office or employment and includes being in or about the performance of a task lawfully assigned to an employee by competent authority.

(6) “State government” means an agency, board, commission, department, or office, other than a district or authority created under Article XVI, Section 59, of the Texas Constitution, that:

(A) was created by the constitution or a statute of this state; and

(B) has statewide jurisdiction.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 693, Sec. 1, eff. June 19, 1987; Acts 1991, 72nd Leg., ch. 476, Sec. 1, eff. Aug. 26, 1991; Acts 1995, 74th Leg., ch. 827, Sec. 1, eff. Aug. 28, 1995; Acts 1997, 75th Leg., ch. 968, Sec. 1, eff. Sept. 1, 1997.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 1101 (S.B. 1560), Sec. 1, eff. June 17, 2011.

Sec. 101.002. SHORT TITLE. This chapter may be cited as the Texas Tort Claims Act.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 101.003. REMEDIES ADDITIONAL. The remedies authorized by this chapter are in addition to any other legal remedies.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 101.004. STATUS OF MEDICAL RESIDENTS AND FELLOWS. For purposes of this chapter, a resident or fellow in a graduate medical training program for physicians that is sponsored by a governmental unit, including a medical and dental unit as defined by Section 61.003, Education Code, is considered to be an employee of a governmental unit regardless of the method or source of payment of the resident or fellow.

Added by Acts 2019, 86th Leg., R.S., Ch. 648 (S.B. 1755), Sec. 1, eff. June 10, 2019.

SUBCHAPTER B. TORT LIABILITY OF GOVERNMENTAL UNITS

Sec. 101.021. GOVERNMENTAL LIABILITY. A governmental unit in the state is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 101.0211. NO LIABILITY FOR JOINT ENTERPRISE. (a) The common law doctrine of vicarious liability because of participation in a joint enterprise does not impose liability for a claim brought under this chapter on:

(1) a water district created pursuant to either Sections 52(b)(1) and (2), Article III, or Section 59, Article XVI, Texas Constitution, regardless of how created; or

(2) a municipality with respect to the use of a municipal airport for space flight activities as defined by Section 100A.001 unless the municipality would otherwise be liable under Section 101.021.

(b) This section does not affect a limitation on liability or damages provided by this chapter, including a limitation under Section 101.023.

Added by Acts 2001, 77th Leg., ch. 1423, Sec. 35, eff. June 17, 2001.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 50 (H.B. 278), Sec. 2, eff. September 1, 2013.

Sec. 101.0215. LIABILITY OF A MUNICIPALITY. (a) A municipality is liable under this chapter for damages arising from its governmental functions, which are those functions that are enjoined on a municipality by law and are given it by the state as part of the state’s sovereignty, to be exercised by the municipality in the interest of the general public, including but not limited to:

(1) police and fire protection and control;

(2) health and sanitation services;

(3) street construction and design;

(4) bridge construction and maintenance and street maintenance;

(5) cemeteries and cemetery care;

(6) garbage and solid waste removal, collection, and disposal;

(7) establishment and maintenance of jails;

(8) hospitals;

(9) sanitary and storm sewers;

(10) airports, including when used for space flight activities as defined by Section 100A.001;

(11) waterworks;

(12) repair garages;

(13) parks and zoos;

(14) museums;

(15) libraries and library maintenance;

(16) civic, convention centers, or coliseums;

(17) community, neighborhood, or senior citizen centers;

(18) operation of emergency ambulance service;

(19) dams and reservoirs;

(20) warning signals;

(21) regulation of traffic;

(22) transportation systems;

(23) recreational facilities, including but not limited to swimming pools, beaches, and marinas;

(24) vehicle and motor driven equipment maintenance;

(25) parking facilities;

(26) tax collection;

(27) firework displays;

(28) building codes and inspection;

(29) zoning, planning, and plat approval;

(30) engineering functions;

(31) maintenance of traffic signals, signs, and hazards;

(32) water and sewer service;

(33) animal control;

(34) community development or urban renewal activities undertaken by municipalities and authorized under Chapters 373 and 374, Local Government Code;

(35) latchkey programs conducted exclusively on a school campus under an interlocal agreement with the school district in which the school campus is located; and

(36) enforcement of land use restrictions under Subchapter E, Chapter 212, Local Government Code.

(b) This chapter does not apply to the liability of a municipality for damages arising from its proprietary functions, which are those functions that a municipality may, in its discretion, perform in the interest of the inhabitants of the municipality, including but not limited to:

(1) the operation and maintenance of a public utility;

(2) amusements owned and operated by the municipality; and

(3) any activity that is abnormally dangerous or ultrahazardous.

(c) The proprietary functions of a municipality do not include those governmental activities listed under Subsection (a).

Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 3.02, eff. Sept. 2, 1987. Amended by Acts 1997, 75th Leg., ch. 152, Sec. 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1170, Sec. 2, eff. June 18, 1999; Acts 2001, 77th Leg., ch. 1399, Sec. 1, eff. June 16, 2001.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 50 (H.B. 278), Sec. 1, eff. September 1, 2013.

Sec. 101.022. DUTY OWED: PREMISE AND SPECIAL DEFECTS. (a) Except as provided in Subsection (c), if a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.

(b) The limitation of duty in this section does not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets or to the duty to warn of the absence, condition, or malfunction of traffic signs, signals, or warning devices as is required by Section 101.060.

(c) If a claim arises from a premise defect on a toll highway, road, or street, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by:

Acts 2005, 79th Leg., Ch. 281 (H.B. 2702), Sec. 2.88, eff. June 14, 2005.

Sec. 101.023. LIMITATION ON AMOUNT OF LIABILITY. (a) Liability of the state government under this chapter is limited to money damages in a maximum amount of $250,000 for each person and $500,000 for each single occurrence for bodily injury or death and $100,000 for each single occurrence for injury to or destruction of property.

(b) Except as provided by Subsection (c), liability of a unit of local government under this chapter is limited to money damages in a maximum amount of $100,000 for each person and $300,000 for each single occurrence for bodily injury or death and $100,000 for each single occurrence for injury to or destruction of property.

(c) Liability of a municipality under this chapter is limited to money damages in a maximum amount of $250,000 for each person and $500,000 for each single occurrence for bodily injury or death and $100,000 for each single occurrence for injury to or destruction of property.

(d) Except as provided by Section 78.001, liability of an emergency service organization under this chapter is limited to money damages in a maximum amount of $100,000 for each person and $300,000 for each single occurrence for bodily injury or death and $100,000 for each single occurrence for injury to or destruction of property.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 3.03, eff. Sept. 2, 1987; Acts 1995, 74th Leg., ch. 827, Sec. 2, eff. Aug. 28, 1995; Acts 1997, 75th Leg., ch. 968, Sec. 2, eff. Sept. 1, 1997.

Sec. 101.024. EXEMPLARY DAMAGES. This chapter does not authorize exemplary damages.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 101.025. WAIVER OF GOVERNMENTAL IMMUNITY; PERMISSION TO SUE. (a) Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter.

(b) A person having a claim under this chapter may sue a governmental unit for damages allowed by this chapter.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 101.026. INDIVIDUAL’S IMMUNITY PRESERVED. To the extent an employee has individual immunity from a tort claim for damages, it is not affected by this chapter.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 101.027. LIABILITY INSURANCE. (a) Each governmental unit other than a unit of state government may purchase insurance policies protecting the unit and the unit’s employees against claims under this chapter. A unit of state government may purchase such a policy only to the extent that the unit is authorized or required to do so under other law.

(b) The policies may relinquish to the insurer the right to investigate, defend, compromise, and settle any claim under this chapter to which the insurance coverage extends.

(c) This state or a political subdivision of the state may not require an employee to purchase liability insurance as a condition of employment if the state or the political subdivision is insured by a liability insurance policy.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1999, 76th Leg., ch. 1499, Sec. 1.01, eff. Sept. 1, 1999.

Sec. 101.028. WORKERS’ COMPENSATION INSURANCE. A governmental unit that has workers’ compensation insurance or that accepts the workers’ compensation laws of this state is entitled to the privileges and immunities granted by the workers’ compensation laws of this state to private individuals and corporations.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 101.029. LIABILITY FOR CERTAIN CONDUCT OF STATE PRISON INMATES. (a) The Department of Criminal Justice is liable for property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an inmate or state jail defendant housed in a facility operated by the department if:

(1) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment;

(2) the inmate or defendant would be personally liable to the claimant for the property damage, personal injury, or death according to Texas law were the inmate or defendant a private person acting in similar circumstances; and

(3) the act, omission, or negligence was committed by the inmate or defendant acting in the course and scope of a task or activity that:

(A) the inmate or defendant performed at the request of an employee of the department; and

(B) the inmate or defendant performed under the control or supervision of the department.

(b) A claimant may not name the inmate or state jail defendant whose act or omission gave rise to the claim as a codefendant in an action brought under this section.

(c) A judgment in an action or a settlement of a claim against the Department of Criminal Justice under this section bars any action involving the same subject matter by the claimant against the inmate or state jail defendant whose act or omission gave rise to the claim. A judgment in an action or a settlement of a claim against an inmate or state jail defendant bars any action involving the same subject matter by the claimant against the Department of Criminal Justice under this section.

(d) This section does not apply to property damage, personal injury, or death sustained by an inmate or state jail defendant.

Added by Acts 1995, 74th Leg., ch. 321, Sec. 1.108, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. 313, Sec. 1, eff. Sept. 1, 1999.

SUBCHAPTER C. EXCLUSIONS AND EXCEPTIONS

Sec. 101.051. SCHOOL AND JUNIOR COLLEGE DISTRICTS PARTIALLY EXCLUDED. Except as to motor vehicles, this chapter does not apply to a school district or to a junior college district.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 101.052. LEGISLATIVE. This chapter does not apply to a claim based on an act or omission of the legislature or a member of the legislature acting in his official capacity or to the legislative functions of a governmental unit.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 101.053. JUDICIAL. (a) This chapter does not apply to a claim based on an act or omission of a court of this state or any member of a court of this state acting in his official capacity or to a judicial function of a governmental unit. “Official capacity” means all duties of office and includes administrative decisions or actions.

(b) This chapter does not apply to a claim based on an act or omission of an employee in the execution of a lawful order of any court.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 3.04, eff. Sept. 2, 1987.

Sec. 101.054. STATE MILITARY PERSONNEL. This chapter does not apply to a claim arising from the activities of the state military forces when on active duty under the lawful orders of competent authority.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 101.055. CERTAIN GOVERNMENTAL FUNCTIONS. This chapter does not apply to a claim arising:

(1) in connection with the assessment or collection of taxes by a governmental unit;

(2) from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action, or in the absence of such a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others; or

(3) from the failure to provide or the method of providing police or fire protection.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 3.05, eff. Sept. 2, 1987; Acts 1995, 74th Leg., ch. 139, Sec. 1, eff. Sept. 1, 1995.

Sec. 101.056. DISCRETIONARY POWERS. This chapter does not apply to a claim based on:

(1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or

(2) a governmental unit’s decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 101.057. CIVIL DISOBEDIENCE AND CERTAIN INTENTIONAL TORTS. This chapter does not apply to a claim:

(1) based on an injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection, or rebellion; or

(2) arising out of assault, battery, false imprisonment, or any other intentional tort, including a tort involving disciplinary action by school authorities.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 101.058. LANDOWNER’S LIABILITY. To the extent that Chapter 75 limits the liability of a governmental unit under circumstances in which the governmental unit would be liable under this chapter, Chapter 75 controls.

Added by Acts 1995, 74th Leg., ch. 520, Sec. 4, eff. Aug. 28, 1995.

Sec. 101.059. ATTRACTIVE NUISANCES. This chapter does not apply to a claim based on the theory of attractive nuisance.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 101.060. TRAFFIC AND ROAD CONTROL DEVICES. (a) This chapter does not apply to a claim arising from:

(1) the failure of a governmental unit initially to place a traffic or road sign, signal, or warning device if the failure is a result of discretionary action of the governmental unit;

(2) the absence, condition, or malfunction of a traffic or road sign, signal, or warning device unless the absence, condition, or malfunction is not corrected by the responsible governmental unit within a reasonable time after notice; or

(3) the removal or destruction of a traffic or road sign, signal, or warning device by a third person unless the governmental unit fails to correct the removal or destruction within a reasonable time after actual notice.

(b) The signs, signals, and warning devices referred to in this section are those used in connection with hazards normally connected with the use of the roadway.

(c) This section does not apply to the duty to warn of special defects such as excavations or roadway obstructions.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 101.061. TORT COMMITTED BEFORE JANUARY 1, 1970. This chapter does not apply to a claim based on an act or omission that occurred before January 1, 1970.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 101.062. 9-1-1 EMERGENCY SERVICE. (a) In this section, “9-1-1 service” and “public agency” have the meanings assigned those terms by Section 771.001, Health and Safety Code.

(b) This chapter applies to a claim against a public agency that arises from an action of an employee of the public agency or a volunteer under direction of the public agency and that involves providing 9-1-1 service or responding to a 9-1-1 emergency call only if the action violates a statute or ordinance applicable to the action.

Added by Acts 1987, 70th Leg., ch. 236, Sec. 2, eff. Aug. 31, 1987. Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 284(3), eff. Sept. 1, 1991.

Sec. 101.063. MEMBERS OF PUBLIC HEALTH DISTRICT. A governmental unit that is a member of a public health district is not liable under this chapter for any conduct of the district’s personnel or for any condition or use of the district’s property.

Added by Acts 1991, 72nd Leg., ch. 476, Sec. 2, eff. Aug. 26, 1991.

Sec. 101.064. LAND ACQUIRED UNDER FORECLOSURE OF LIEN OR BY CONVEYANCE IN SATISFACTION OF CERTAIN TAX DEBT. (a) This chapter does not apply to a claim:

(1) against a political subdivision of this state that acquires land:

(A) as a result of the foreclosure of a lien held by the political subdivision, including land that was bid off to the political subdivision under Section 34.01, Tax Code; or

(B) under Section 31.061, Tax Code;

(2) that arises after the date the land was acquired and before the date the land is sold, conveyed, or exchanged by the political subdivision; and

(3) that arises from:

(A) the condition of the land;

(B) a premises defect on the land; or

(C) an action committed by any person, other than an agent or employee of the political subdivision, on the land.

(b) In this section, “land” includes any building or improvement located on land acquired by a political subdivision.

Added by Acts 1995, 74th Leg., ch. 139, Sec. 5, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 442, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 712, Sec. 2, eff. June 17, 1997.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 240 (S.B. 450), Sec. 1, eff. September 1, 2015.

Sec. 101.065. NEGLIGENCE OF OFF-DUTY LAW ENFORCEMENT OFFICERS. This chapter does not apply to the wrongful act or omission or the negligence of an officer commissioned by the Department of Public Safety if the officer was not on active duty at the time the act, omission, or negligence occurred. This section applies without regard to whether the officer was wearing a uniform purchased under Section 411.0078, Government Code, at the time the act, omission, or negligence occurred.

Added by Acts 1995, 74th Leg., ch. 738, Sec. 2, eff. Sept. 1, 1995. Renumbered from Civil Practice and Remedies Code Sec. 101.058 by Acts 1997, 75th Leg., ch. 165, Sec. 31.01(9), eff. Sept. 1, 1997.

Sec. 101.066. COMPUTER DATE FAILURE. This chapter does not apply to a claim for property damage caused by a computer date failure as described by Section 147.003.

Added by Acts 1999, 76th Leg., ch. 128, Sec. 3, eff. May 19, 1999.

Sec. 101.067. GRAFFITI REMOVAL. This chapter does not apply to a claim for property damage caused by the removal of graffiti under Section 250.006, Local Government Code.

Added by Acts 2009, 81st Leg., R.S., Ch. 1130 (H.B. 2086), Sec. 27, eff. September 1, 2009.

SUBCHAPTER D. PROCEDURES

Sec. 101.101. NOTICE. (a) A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred. The notice must reasonably describe:

(1) the damage or injury claimed;

(2) the time and place of the incident; and

(3) the incident.

(b) A city’s charter and ordinance provisions requiring notice within a charter period permitted by law are ratified and approved.

(c) The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant’s property has been damaged.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 101.102. COMMENCEMENT OF SUIT. (a) A suit under this chapter shall be brought in state court in the county in which the cause of action or a part of the cause of action arises.

(b) The pleadings of the suit must name as defendant the governmental unit against which liability is to be established.

(c) In a suit against the state, citation must be served on the secretary of state. In other suits, citation must be served as in other civil cases unless no method of service is provided by law, in which case service may be on the administrative head of the governmental unit being sued. If the administrative head of the governmental unit is not available, the court in which the suit is pending may authorize service in any manner that affords the governmental unit a fair opportunity to answer and defend the suit.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 3.06, eff. Sept. 2, 1987.

Sec. 101.103. LEGAL REPRESENTATION. (a) The attorney general shall defend each action brought under this chapter against a governmental unit that has authority and jurisdiction coextensive with the geographical limits of this state. The attorney general may be fully assisted by counsel provided by an insurance carrier.

(b) A governmental unit having an area of jurisdiction smaller than the entire state shall employ its own counsel according to the organic act under which the unit operates, unless the governmental unit has relinquished to an insurance carrier the right to defend against the claim.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 101.104. EVIDENCE OF INSURANCE COVERAGE. (a) Neither the existence nor the amount of insurance held by a governmental unit is admissible in the trial of a suit under this chapter.

(b) Neither the existence nor the amount of the insurance is subject to discovery.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 101.105. SETTLEMENT. (a) A cause of action under this chapter may be settled and compromised by the governmental unit if, in a case involving the state the governor determines, or if, in other cases the governing body of the governmental unit determines, that the compromise is in the best interests of the governmental unit.

(b) Approval is not required if the governmental unit has acquired insurance under this chapter.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985

Sec. 101.106. ELECTION OF REMEDIES. (a) The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.

(b) The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.

(c) The settlement of a claim arising under this chapter shall immediately and forever bar the claimant from any suit against or recovery from any employee of the same governmental unit regarding the same subject matter.

(d) A judgment against an employee of a governmental unit shall immediately and forever bar the party obtaining the judgment from any suit against or recovery from the governmental unit.

(e) If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.

(f) If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 2003, 78th Leg., ch. 204, Sec. 11.05, eff. Sept. 1, 2003.

Sec. 101.107. PAYMENT AND COLLECTION OF JUDGMENT. (a) A judgment in a suit under this chapter may be enforced only in the same manner and to the same extent as other judgments against the governmental unit are enforceable as provided by law, unless the governmental unit has liability or indemnity insurance protection, in which case the holder of the judgment may collect the judgment, to the extent of the insurer’s liability, as provided in the insurance or indemnity contract or policy or as otherwise provided by law.

(b) A judgment or a portion of a judgment that is not payable by an insurer need not be paid by a governmental unit until the first fiscal year following the fiscal year in which the judgment becomes final.

(c) If in a fiscal year the aggregate amount of judgments under this chapter against a governmental unit that become final, excluding the amount payable by an insurer, exceeds one percent of the unit’s budgeted tax funds for the fiscal year, excluding general obligation debt service requirements, the governmental unit may pay the judgments in equal annual installments for a period of not more than five years. If payments are extended under this subsection, the governmental unit shall pay interest on the unpaid balance at the rate provided by law.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 101.108. AD VALOREM TAXES FOR PAYMENT OF JUDGMENT. (a) A governmental unit not fully covered by liability insurance may levy an ad valorem tax for the payment of any final judgment under this chapter.

(b) If necessary to pay the amount of a judgment, the ad valorem tax rate may exceed any legal tax rate limit applicable to the governmental unit except a limit imposed by the constitution.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 101.109. PAYMENT OF CLAIMS AGAINST CERTAIN UNIVERSITIES. A claim under this chapter against a state-supported senior college or university is payable only by a direct legislative appropriation made to satisfy claims unless insurance has been acquired as provided by this chapter. If insurance has been acquired, the claimant is entitled to payment to the extent of the coverage as in other cases.

How to file a claim against a government elected or appointed office in Utah. 

  • § 901a. Tort claims against municipal employees(b) When the act or omission of a municipal employee acting within the scope of employment is alleged to have caused damage to property, injury to persons, or death, the exclusive right of action shall lie against the municipality that employed the employee at the time of the act or omission; and no such action may be maintained against the municipal employee or the estate of the municipal employee.(d)(1) The municipality shall defend and indemnify a municipal employee for any legal costs if a municipal employee is improperly named as a defendant in a proceeding.(e) This section shall not apply to an act or omission of a municipal employee that was willful, intentional, or outside the scope of the employee’s authority.
  • (f) When two or more conflicting statutes provide protection to a municipal employee whose act or omission is alleged to have caused damage to property, injury to persons, or death, a court shall apply the statute that grants greater protection to the municipal employee. (Added 2003, No. 62, § 1; see effective date note below.)
  • (2) The municipality shall defend or, when a cause of action contains elements not covered by insurance, reimburse legal defense and expense costs incurred by a municipal employee in the event that a municipal employee is named as a party under subsection (e) of this section and the employee is dismissed from the matter before the entry of a judgment by the court or the acts or omissions of the employee are determined not to be willful, intentional, or outside the scope of the employee’s authority.
  • (c) When a municipality assumes the place of a municipal employee in an action as provided in subsection (b) of this section, the municipality may assert all defenses available to the municipal employee, and the municipality shall waive any defense not available to the municipal employee, including municipal sovereign immunity.
  • (a) As used in this section, “municipal employee” means any person employed for a wage or salary by a municipality; a volunteer whose services have been requested by the legislative body of a municipality; a volunteer whose services have been requested by a municipal officer; or a volunteer whose services have been requested by an employee of the municipality acting within the scope of the employee’s authority.

§ 8.01-195.6. Notice of claim.

A. Every claim cognizable against the Commonwealth or a transportation district shall be forever barred unless the claimant or his agent, attorney or representative has filed a written statement of the nature of the claim, which includes the time and place at which the injury is alleged to have occurred and the agency or agencies alleged to be liable, within one year after such cause of action accrued. Failure to provide such statement shall not bar a claim against the Commonwealth or a transportation district, provided that (i) for claims against the Commonwealth, the Division of Risk Management or any insurer or entity providing coverage or indemnification of the claim or the Attorney General or (ii) for claims against a transportation district, the chairman of the commission of the transportation district, had actual knowledge of the claim, which includes the nature of the claim, the time and place at which the injury is alleged to have occurred, and the agency or agencies alleged to be liable, within one year after such cause of action accrued. However, if the claimant was under a disability at the time the cause of action accrued, the tolling provisions of § 8.01-229 shall apply.

B. If the claim is against the Commonwealth, the statement shall be filed with the Director of the Division of Risk Management or the Attorney General, except as otherwise provided herein. If the claim is against a transportation district, the statement shall be filed with the chairman of the commission of the transportation district. If the claim is against the Commonwealth and the agency alleged to be liable is the Department of Transportation, then notice of such claim shall be filed with the Commissioner of Highways. If notice of such claim is filed with the Commissioner of Highways and is outside of any settlement authority delegated to the Department of Transportation by the Attorney General, then the Commissioner of Highways shall promptly deliver the notice of such claim to the Attorney General.

C. The notice is deemed filed when it is received in the office of the official to whom the notice is directed. The notice may be delivered by hand, by any form of United States mail service (including regular, certified, registered or overnight mail), or by commercial delivery service. If notice is to be filed with the Commissioner of Highways, it may also be delivered electronically in a manner prescribed by the Commissioner of Highways.

D. In any action contesting the filing of the notice of claim, the burden of proof shall be on the claimant to establish receipt of the notice in conformity with this section. A signed United States mail return receipt indicating the date of delivery, or any other form of signed and dated acknowledgment of delivery given by authorized personnel in the office of the official with whom the statement is filed, shall be prima facie evidence of filing of the notice under this section.

E. Claims against the Commonwealth involving medical malpractice shall be subject to the provisions of this article and to the provisions of Chapter 21.1 (§ 8.01-581.1 et seq.). However, the recovery in such a claim involving medical malpractice shall not exceed the limits imposed by § 8.01-195.3.

1981, c. 449; 1984, cc. 638, 698; 1986, c. 584; 1991, c. 23; 1992, c. 796; 2002, c. 207; 2007, c. 368; 2016, cc. 760772.

 

RCW 4.96.020

Tortious conduct of local governmental entities and their agents—Claims—Presentment and filing—Contents.

(1) The provisions of this section apply to claims for damages against all local governmental entities and their officers, employees, or volunteers, acting in such capacity.

(2) The governing body of each local governmental entity shall appoint an agent to receive any claim for damages made under this chapter. The identity of the agent and the address where he or she may be reached during the normal business hours of the local governmental entity are public records and shall be recorded with the auditor of the county in which the entity is located. All claims for damages against a local governmental entity, or against any local governmental entity’s officers, employees, or volunteers, acting in such capacity, shall be presented to the agent within the applicable period of limitations within which an action must be commenced. A claim is deemed presented when the claim form is delivered in person or is received by the agent by regular mail, registered mail, or certified mail, with return receipt requested, to the agent or other person designated to accept delivery at the agent’s office. The failure of a local governmental entity to comply with the requirements of this section precludes that local governmental entity from raising a defense under this chapter.

(3) For claims for damages presented after July 26, 2009, all claims for damages must be presented on the standard tort claim form that is maintained by the office of risk management in the department of enterprise services, except as allowed under (c) of this subsection. The standard tort claim form must be posted on the department of enterprise services’ website.

(a) The standard tort claim form must, at a minimum, require the following information:

(i) The claimant’s name, date of birth, and contact information;

(ii) A description of the conduct and the circumstances that brought about the injury or damage;

(iii) A description of the injury or damage;

(iv) A statement of the time and place that the injury or damage occurred;

(v) A listing of the names of all persons involved and contact information, if known;

(vi) A statement of the amount of damages claimed; and

(vii) A statement of the actual residence of the claimant at the time of presenting the claim and at the time the claim arose.

(b) The standard tort claim form must be signed either:

(i) By the claimant, verifying the claim;

(ii) Pursuant to a written power of attorney, by the attorney-in-fact for the claimant;

(iii) By an attorney admitted to practice in Washington state on the claimant’s behalf; or

(iv) By a court-approved guardian or guardian ad litem on behalf of the claimant.

(c) Local governmental entities shall make available the standard tort claim form described in this section with instructions on how the form is to be presented and the name, address, and business hours of the agent of the local governmental entity. If a local governmental entity chooses to also make available its own tort claim form in lieu of the standard tort claim form, the form:

(i) May require additional information beyond what is specified under this section, but the local governmental entity may not deny a claim because of the claimant’s failure to provide that additional information;

(ii) Must not require the claimant’s social security number; and

(iii) Must include instructions on how the form is to be presented and the name, address, and business hours of the agent of the local governmental entity appointed to receive the claim.

(d) If any claim form provided by the local governmental entity fails to require the information specified in this section, or incorrectly lists the agent with whom the claim is to be filed, the local governmental entity is deemed to have waived any defense related to the failure to provide that specific information or to present the claim to the proper designated agent.

(e) Presenting either the standard tort claim form or the local government tort claim form satisfies the requirements of this chapter.

(f) The amount of damages stated on the claim form is not admissible at trial.

(4) No action subject to the claim filing requirements of this section shall be commenced against any local governmental entity, or against any local governmental entity’s officers, employees, or volunteers, acting in such capacity, for damages arising out of tortious conduct until sixty calendar days have elapsed after the claim has first been presented to the agent of the governing body thereof. The applicable period of limitations within which an action must be commenced shall be tolled during the sixty calendar day period. For the purposes of the applicable period of limitations, an action commenced within five court days after the sixty calendar day period has elapsed is deemed to have been presented on the first day after the sixty calendar day period elapsed.

(5) With respect to the content of claims under this section and all procedural requirements in this section, this section must be liberally construed so that substantial compliance will be deemed satisfactory.

CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.

ARTICLE 17. PROCEDURES FOR CERTAIN ACTIONS AGAINST THE STATE.

§55-17-3. Preliminary procedures; service on Attorney General; notice to the Legislature.

(a)(1) Notwithstanding any provision of law to the contrary, at least thirty days prior to the institution of an action against a government agency, the complaining party or parties must provide the chief officer of the government agency and the Attorney General written notice, by certified mail, return receipt requested, of the alleged claim and the relief desired. Upon receipt, the chief officer of the government agency shall forthwith forward a copy of the notice to the President of the Senate and the Speaker of the House of Delegates. The provisions of this subdivision do not apply in actions seeking injunctive relief where the court finds that irreparable harm would have occurred if the institution of the action was delayed by the provisions of this subsection.

(2) The written notice to the chief officer of the government agency and the Attorney General required by subdivision (1) of this subsection is considered to be provided on the date of mailing of the notice by certified mail, return receipt requested. If the written notice is provided to the chief officer of the government agency as required by subdivision (1) of this subsection, any applicable statute of limitations is tolled for thirty days from the date the notice is provided and, if received by the government agency as evidenced by the return receipt of the certified mail, for thirty days from the date of the returned receipt.

(3) A copy of any complaint filed in an action as defined in section two of this article shall be served on the Attorney General.

(b) (1) Notwithstanding any procedural rule or any provision of this code to the contrary, in an action instituted against a government agency that seeks a judgment, as defined in section two of this article, the chief officer of the government agency which is named a party to the action shall, upon receipt of service, forthwith give written notice thereof, together with a copy of the complaint filed, to the President of the Senate and the Speaker of the House of Delegates.

(2) Upon request, the chief officer of the government agency shall furnish the President and Speaker with copies of pleadings filed and discovery produced in the proceeding and other documents, information and periodic reports relating to the proceeding as may be requested.

(3) The chief officer of a government agency who fails without good cause to comply with the provisions of this subsection is guilty of misfeasance. This subsection does not require a notice or report to the President and the Speaker that no action has been instituted or is pending against a governmental agency during a specified period.

(c) The requirements for notice and delivery of pleadings and other documents to the President of the Senate or Speaker of the House of Delegates pursuant to the provisions of this section do not constitute a waiver of any Constitutional immunity or protection that proscribes or limits actions, suits or proceedings against the Legislature or the State of West Virginia.

(d) The exercise of authority granted by the provisions of this section does not subject the Legislature or any member of the Legislature to any terms of a judgment.

893.82 Claims against state employees; notice of claim; limitation of damages.
(1)  The purposes of this section are to:
(a) Provide the attorney general with adequate time to investigate claims which might result in judgments to be paid by the state.
(b) Provide the attorney general with an opportunity to effect a compromise without a civil action or civil proceeding.
(c) Place a limit on the amounts recoverable in civil actions or civil proceedings against any state officer, employee or agent.
(2) In this section:
(a) “Civil action or civil proceeding” includes a civil action or civil proceeding commenced or continued by counterclaim, cross claim or 3rd-party complaint.
(b) “Claimant” means the person or entity sustaining the damage or injury or his or her agent, attorney or personal representative.
(c) “Damage” or “injury” means any damage or injury of any nature which is caused or allegedly caused by the event. “Damage” or “injury” includes, but is not limited to, any physical or mental damage or injury or financial damage or injury resulting from claims for contribution or indemnification.
(d) “State officer, employee or agent” includes any of the following persons:
1. An officer, employee or agent of any nonprofit corporation operating a museum under a lease agreement with the state historical society.
1m. A volunteer health care provider who provides services under s. 146.89, except a volunteer health care provider described in s. 146.89 (5) (a), for the provision of those services.
1n. A practitioner who provides services under s. 257.03 and a health care facility on whose behalf services are provided under s. 257.04, for the provision of those services.
1r. A physician under s. 251.07 or 252.04 (9) (b).
2. A member of a local emergency planning committee appointed by a county board under s. 59.54 (8) (a).
3. A member of the board of governors created under s. 619.04 (3), a member of a committee or subcommittee of that board of governors, a member of the injured patients and families compensation fund peer review council created under s. 655.275 (2), and a person consulting with that council under s. 655.275 (5) (b).
(2m) No claimant may bring an action against a state officer, employee or agent unless the claimant complies strictly with the requirements of this section.
(3) Except as provided in sub. (5m), no civil action or civil proceeding may be brought against any state officer, employee or agent for or on account of any act growing out of or committed in the course of the discharge of the officer’s, employee’s or agent’s duties, and no civil action or civil proceeding may be brought against any nonprofit corporation operating a museum under a lease agreement with the state historical society, unless within 120 days of the event causing the injury, damage or death giving rise to the civil action or civil proceeding, the claimant in the action or proceeding serves upon the attorney general written notice of a claim stating the time, date, location and the circumstances of the event giving rise to the claim for the injury, damage or death and the names of persons involved, including the name of the state officer, employee or agent involved. Except as provided under sub. (3m), a specific denial by the attorney general is not a condition precedent to bringing the civil action or civil proceeding.
(3m) If the claimant is a prisoner, as defined in s. 801.02 (7) (a) 2., the prisoner may not commence the civil action or proceeding until the attorney general denies the claim or until 120 days after the written notice under sub. (3) is served upon the attorney general, whichever is earlier. This subsection does not apply to a prisoner who commences an action seeking injunctive relief if the court finds that there is a substantial risk to the prisoner’s health or safety.
(4) 
(a) Except as provided in par. (b), if the civil action or proceeding under sub. (3) is based on contribution or indemnification, the event under sub. (3) is the underlying cause of action, not the cause of action for contribution or indemnification, and, except as provided in sub. (5m), the 120-day limitation applies to that event.
(b)
1. If the claimant under par. (a) establishes that he or she had no actual or constructive knowledge of the underlying cause of action at the time of the event under sub. (3), except as provided in sub. (5m), the 120-day limitation under sub. (3) applies to the earlier of the following:
a. The date the cause of action for contribution or indemnification accrues.
b. The date the claimant acquired actual or constructive knowledge of the underlying cause of action.
2. The claimant has the burden of proving he or she had no actual knowledge of the underlying cause of action under this paragraph.
(5) The notice under sub. (3) shall be sworn to by the claimant and shall be served upon the attorney general at his or her office in the capitol or at the department of justice by personal service or by certified mail. If served by certified mail, notice shall be considered to be given upon mailing for the purpose of computing the time of giving notice.
(5m) With regard to a claim to recover damages for medical malpractice, the provisions of subs. (3)(3m), and (4) do not apply. The time periods for commencing an action under this section for damages for medical malpractice are the time periods under ss. 893.55 (1m)(2), and (3) and 893.56.
(6) The amount recoverable by any person or entity for any damages, injuries or death in any civil action or civil proceeding against a state officer, employee or agent, or against a nonprofit corporation operating a museum under a lease agreement with the state historical society, including any such action or proceeding based on contribution or indemnification, shall not exceed $250,000. No punitive damages may be allowed or recoverable in any such action.
(7) With respect to a state officer, employee or agent described in sub. (2) (d) 3., this section applies to an event causing the injury, damage or death giving rise to an action against the state officer, employee or agent, which occurs before, on or after April 25, 1990.
(8) This section does not apply to actions commenced under s. 19.37 or 19.97.
(9) For purposes of this section, any employee of the state of Minnesota performing services for this state pursuant to a valid agreement between this state and the state of Minnesota providing for interchange of employees or services is considered to have the same status an as employee of this state performing the same services for this state, and any employee of this state who performs services for the state of Minnesota pursuant to such an agreement is considered to have the same status as when performing the same services for this state in any action brought under the laws of this state.
Judicial Council Committee’s Note, 1979: This section is previous s. 895.45 renumbered for more logical placement in restructured ch. 893. The previous 90-day time period in which to file written notice of a claim against an employee of the state of Wisconsin has been increased to 120 days to make the time period consistent with the period for filing notice of claims with other governmental bodies allowed in s. 893.80. (See note following s. 893.80). [Bill 326-A]
The court had no jurisdiction over state employees alleged to have intentionally damaged the plaintiff when the complaint failed to comply with the notice of claim statute. Elm Park Iowa, Inc. v. Denniston, 92 Wis. 2d 723286 N.W.2d 5 (Ct. App. 1979).
Noncompliance with the notice of injury statute barred suit even though the defendant failed to raise the issue in responsive pleadings. Mannino v. Davenport, 99 Wis. 2d 602299 N.W.2d 823 (1981).
The court properly granted the defendant’s motion to dismiss since a notice of claim of injury was not served upon the attorney general within the 120-day limit. Ibrahim v. Samore, 118 Wis. 2d 720348 N.W.2d 554 (1984).
Sub. (3) does not create an exception for a plaintiff who is unaware that a defendant is a state employee. Renner vs. Madison General Hospital, 151 Wis. 2d 885447 N.W.2d 97 (Ct. App. 1989).
Under an administrative-services-only state group insurance contract, the insurer is an agent of the state, and the plaintiff must comply with the notice provisions under this section to maintain an action. Smith v. Wisconsin Physicians Services, 152 Wis. 2d 25447 N.W.2d 371 (Ct. App. 1989).
A possible finding that a state employee was acting as an apparent agent of a non-state hospital does not permit the maintenance of a suit against the state employee absent compliance with the notice requirements. Kashishian v. Port, 167 Wis. 2d 24481 N.W.2d 227 (1992).
Actual notice and lack of prejudice to the state are not exceptions to the 120-day notice requirement. Carlson v. Pepin County 167 Wis. 2d 345481 N.W.2d 498 (Ct. App. 1992).
The certified mail requirement under sub. (5) is subject to strict construction. Thus, when the plaintiff in this case served notice of claim by regular mail rather than by certified mail dismissal was appropriate. Kelly v. Reyes, 168 Wis. 2d 743484 N.W.2d 388 (Ct. App. 1992).
Records relating to pending claims need not be disclosed under s. 19.35. Records of nonpending claims must be disclosed unless an in camera inspection reveals attorney-client privilege would be violated. George v. Record Custodian, 169 Wis. 2d 573485 N.W.2d 460 (Ct. App. 1992).
Sub. (3) does not apply to claims for injunctive and declaratory relief. Lewis v. Sullivan, 188 Wis. 2d 157524 N.W.2d 630 (1994).
Sub. (5) requires a notice of claim to be sworn to and to include evidence showing that an oath or affirmation occurred. Kellner v. Christian, 197 Wis. 2d 183539 N.W.2d 685 (1994), 93-1657.
The discovery rule does not apply to sub. (3). The failure to apply the discovery rule to sub. (3) is not unconstitutional. Oney v. Schrauth, 197 Wis. 2d 891541 N.W.2d 229 (Ct. App. 1995), 94-3298.
The constitutional mandate of just compensation for a taking of property cannot be limited in amount by statute. A taking may result in the state’s obligation to pay more than $250,000. Retired Teachers Association v. Employee Trust Funds Board, 207 Wis. 2d 1558 N.W.2d 83 (1997), 94-0712.
A state “agent” under sub. (3) means an individual and not a state agency. Miller v. Mauston School District, 222 Wis. 2d 540588 N.W.2d 305 (Ct. App. 1998), 97-1874.
A defendant is not relieved from filing a notice of claim under this section when a state employee also performs functions for a private employer. The notice of claim provisions are constitutional. Riccitelli v. Broekhuizen, 227 Wis. 2d 100595 N.W.2d 392 (1999), 98-0329.
This section does not provide an administrative remedy for purposes of filing a federal civil rights claim under 42 USC 1983 and therefore the failure to file a notice of claim under this section was not a failure to exhaust administrative remedies justifying denial of a petition. State ex rel. Ledford v. Circuit Court for Dane County, 228 Wis. 2d 768599 N.W.2d 45 (Ct. App. 1999), 99-0939.
The factors relevant to a master/servant relationship are relevant to deciding whether a person is a state employee under sub. (3). A state employee’s affiliation with another entity does not vitiate his or her status as a state employee for purposes of sub. (3) as long as the act sued upon grows out of or was committed in the course of duties as a state employee. Lamoreux v. Oreck, 2004 WI App 160275 Wis. 2d 801686 N.W.2d 72203-2045.
A notice is properly served on the attorney general under sub. (5) if a claimant sends the notice by certified mail addressed to the attorney general at his or her capitol office, Main Street office, post office box, or any combination of those three addresses, assuming that the notice otherwise complies with sub. (5). Hines v. Resnick, 2011 WI App 163338 Wis. 2d 190807 N.W.2d 68711-0109.
Kellner sets forth two requirements in order for a notice of claim to be properly “sworn to” under sub. (5). First, a formal oath or affirmation must be taken by a claimant. Second, the notice of claim must contain a statement showing that the oath or affirmation occurred. Neither requirement demands that a false notice of claim be punishable for perjury or that a notice of claim must contain a statement by a notary that an oath or affirmation was administered. Estate of Hopgood v. Boyd, 2013 WI 1345 Wis. 2d 65825 N.W.2d 27311-0914.
Sub. (3)’s time-of-the-event requirement only requires a plaintiff to include the time of the event giving rise to a claim when it is possible to do so. To require otherwise essentially bars recovery for plaintiffs with claims that are not set in a single moment in time and creates an absurd result. The plaintiffs’ claims in this case did not arise from a singular event occurring at a fixed moment in time, but were based on numerous events that transpired over a duration of time. Requiring them to set forth the exact moment in time that each of these events occurred was unreasonable. Mayo v. Boyd, 2014 WI App 37353 Wis. 2d 162844 N.W.2d 65213-1578.
Members of the Investment Board, Employee Trust Fund Board, Teachers Retirement Board, Wisconsin Retirement Board, Group Insurance Board, and Deferred Compensation Board are subject to the limitations on damages under this section and are entitled to the state’s indemnification for liability under s. 895.46. OAG 2-06.
This section provides no affirmative waiver of the state’s immunity to suit, but forecloses suit when its procedures are not followed. The state has not waived its immunity under the federal Fair Labor Standards Act. Luder v. Endicott, 86 F. Supp. 2d 854 (2000).
The injury caused by a misdiagnosis arises when the misdiagnosis causes greater harm than existed at the time of the misdiagnosis. Under sub. (6), discovery occurs when the plaintiff has information that would give a reasonable person notice of the injury, that is, of the greater harm caused by the misdiagnosis. McCulloch v. Linblade, 513 F. Supp 2d 1037 (2007).

1-39-113. Claims procedure.

(a) No action shall be brought under this act against a governmental entity unless the claim upon which the action is based is presented to the entity as an itemized statement in writing within two (2) years of the date of the alleged act, error or omission, except that a cause of action may be instituted not more than two (2) years after discovery of the alleged act, error or omission, if the claimant can establish that the alleged act, error or omission was:

(i) Not reasonably discoverable within a two (2) year period; or

(ii) The claimant failed to discover the alleged act, error or omission within the two (2) year period despite the exercise of due diligence.

(b) The claim shall state:

(i) The time, place and circumstances of the alleged loss or injury including the name of the public employee involved, if known;

(ii) The name, address and residence of the claimant and his representative or attorney, if any; and

(iii) The amount of compensation or other relief demanded.

(c) All claims against the state shall be presented to the general services division of the department of administration and information. Claims against any other governmental entity shall be filed at the business office of that entity. In the case of claims against local governments the claim submitted need not be acted upon by the entity prior to suit. For purposes of this section, “business office” means:

(i) The county clerk of a county, including its agencies, instrumentalities and institutions;

(ii) The city or town clerk of a city or town, including its agencies, instrumentalities and institutions;

(iii) The secretary of a joint powers board, airport board, public corporation, community college district board of trustees or special district;

(iv) The superintendent of a school district;

(v) The president of the University of Wyoming.

(d) In any action under this act, the complaint shall state:

(i) That the claim required under subsection (c) of this section was filed in accordance with this section;

(ii) The date the claim under subsection (c) of this section was filed;

(iii) That the claim was in compliance with the signature and certification requirements of article 16, section 7 of the Wyoming Constitution.

(e) In any claim filed with a governmental entity under this act, the claim shall be signed by the claimant under oath in substantially the following format:

I, _________________________ , have read and understand the provisions of the false swearing statute. I hereby certify under penalty of false swearing that the foregoing claim, including all of its attachments, if any, is true and accurate.

Signature of Claimant Date

Printed Name of Claimant

STATE OF WYOMING )

) ss.

COUNTY OF ______________ )

Subscribed and sworn to before me, a Notarial Officer, this … day of ….., . …

Notarial Officer

My Commission Expires: (Seal).

Be sure to create SEPARATE CLAIMS for each elected official and each notifying party!!

The goal is to have as many claims pile up as possible.  They will try to lump your claims together but do not allow them to do this. 

GIVE EACH CHILD A VOICE!

3.) If your state requires you to submit a tort claim form download the form. Complete the fields of the form that apply to your claim. The forms the government uses mostly deal with car accidents. It is still necessary that we use this form to file your claim. 

4.) In other states you will be asked to write your own letter to file a claim against a government elected or appointed official.

Examples: Notice to File a Claim


5.) If your state requires you to file the claim form it will be necessary that you attach a “Notice to File a Claim” with this form. The form does not have the necessary fields you will need to file your claim. 

6.) Each time you file a criminal liability claim against a government official it is necessary that you supply an affidavit of facts with your claim letter or form. The affidavit is a statement of true facts and the evidence necessary to support your claim.

7.) When you write your affidavit, stick to the facts. The affidavit should site 5 to 7 laws that were broken and easy for you to prove. Do not write a novel, keep it simple and just supply the facts. Do not get overwhelmed when finding your evidence.  It is not difficult to find the evidence you’ll need to support your claim. The evidence can be as simple as:

  • Link to a meeting that was recorded on YouTube.
  • A letter that was sent to you by email.
  • Information that your children bring home from school.
  • Notes from a board meeting or other public meeting that are recorded and online.
  • Links to information that has been posted on their website, Twitter, Facebook or other social media sites.
  • A testimonial that you found online.
  • PDF documents that support your claim i.e. a PDF  file from the FDA concerning mask or vaccines that they failed to supply you with.
  • Links to the clinical trials or even court cases that support your case.
  • Pictures you or someone else has taken.
  • A written letter from your child or another parent.
  • If you need to prove your child is failing in school attach a copy of their grades before and after the start of Covid.


Examples: Affidavit of Facts:


How To Read An Insurance Policy:

  • We have a step by step tutorial that will teach you how to easily read an insurance policy so you can file your claim.