It is becoming increasingly common that accidents involve the government. If you get hit by a police cruiser, have a slip and fall in a government office or are a victim of medical malpractice in a VA Hospital, your defendant is not the individual at fault, but the relevant government entity. Right off the bat, identifying that government entity can be challenging, but it is important to identify the right one. For example, in Massachusetts if you are in an accident with a police cruiser, then the entity is the town that the police officer works for. If it is a state trooper, then it is the Commonwealth. If the cruiser belongs to a Sheriff’s Department, then it is a county government that is responsible, unless it is Middlesex County. If you are in an accident with a Lowell Regional Transit Authority bus, then the Lowell Regional Transit Authority is your defendant, but if it is an MBTA bus, the MBTA is responsible. I recently had a case in which my client was involved in an accident with a military vehicle. We had to bring a claim against the United States of America.
When it is a slip and fall accident, it gets even more complicated. I have never had a government entity immediately accept that they were the responsible party in such a case. They will immediately blame a third party, whether it be a landlord who is renting to the government, or an outside maintenance contractor or whomever. Sometimes, that blaming is helpful as it enables us to find a private party to go after, and sometimes it is not. I had a case once in which I believe it was the Federal Government renting space in a State owned building. After jumping through the Federal Government’s hoops and then the State Government’s hoops, it turned out that the Federal Government was the responsible party after all.
Which brings us to the second problem. Once you determine what level of government or agency of government is your defendant, you are then subject to the relevant Tort Claims Act. Here it does become important to determine what specific agency is involved, as you are often required to notify the specific agency that is at fault. In any event, both the State and Federal tort claims acts have what is known as a presentment requirement and it is necessary to notify the appropriate party, in writing, that you are making the claim not more than two years after the loss. There is still a three year statute of limitations for bringing a lawsuit, but if you do not make a presentment within two years, you are out of luck. In practice, the government has two statutes of limitations. In addition, you cannot bring a lawsuit within six months of the presentment.
In theory, this six month rule is to give the Government time to review your claim and settle it. In practice, it is a source of delay. The Government is also the beneficiary of another special rule, which is that they are not subject to prejudgment interest or court costs when they lose a case. That, coupled with the fact that their attorneys are usually salaried government employees who are paid the same whether they go to court or not, gives the Government little incentive to settle a case promptly. In a place like Lowell, in which the City Council is elected every two years, and City Managers usually do not last very long, there are huge political benefits to delaying the settling of cases. I do not believe that I have ever had a case against the City in which the nine councilors that were there when the accident happened are the same nine that were there when the case resolved. In fact, I rarely have had the same City Manager from start to finish. As a result, not settling promptly often means that the budget hit associated with the accident is the next guy’s problem.
When I have a case with the City of Lowell or any agency of state or local government, I send my presentment letter as soon as a case walks in the door. I am obviously not in a position to settle the case, but I know that the six month review is not going to net a settlement anyway. I might as well get the clock going. Similarly, we will mark our calendars six months ahead and file suit as soon as the six months are over. Depending on the severity of the injury, we might not yet have all the medical records. In fact, the client may still be treating. However, the lawsuit has to be filed in Superior Court, where it will be placed on the “average track”. There are three tracks in Superior Court: “accelerated”, “fast” and “average”. As such, the average track is really the slow track. The Court’s goal on an “average” track case is to have a trial in three years. Typically, the City is not going to settle until you are getting close to a trial date.
I will give an example from many years ago, when I was a young lawyer. I had a client come in with a simple property damage claim. A police cruiser had hit a parked car. The damage was less than a thousand dollars ($1,000.00). I think it was about six hundred dollars ($600.00). I sent in my presentment letter with the full settlement package. It included the police report, which indicated that an officer had hit a parked car, and the appraisal from the body shop. Figuring that this would be an easy one, I started calling the lawyer in the City Solicitor’s Office who had the case. He was someone who I knew fairly well and thought was a nice guy (he actually was a nice guy, just not in this case). He never returned my calls, which I did not understand.
One day I ran into him at court and I asked him why he was not returning my calls. He said ‘Louis, I have no money for you. I am not going to be able to get money for you. You have to file suit.’ I argued with him. It is clear liability. It is small damages. Why are we doing this? He just explained to me that no one was going to authorize a settlement without a lawsuit.
I naively thought that he was telling me to go through the motions of filing a lawsuit, so I just filed something in small claims figuring, ‘okay I have just jumped through their hoop and now I can settle’. He immediately filed a Motion to Dismiss, because the City can only be sued in the Superior Court. I filed in the Superior Court. Even then, the filing fee was almost two hundred dollars. I already spent one third of the value of my six hundred dollar case and I cannot recover my court costs. If I could recover my court costs, it is possible that the City might have let me stay in the Small Claims Court.
After I filed suit in the Superior Court, I called the lawyer again. This time he took my call. I said ‘okay I filed suit, can we settle the case now?’ He said ‘Louis, we are on the average track, this thing does not come to trial for three years. Call me then.’ At this point I probably got a little bit colorful and explained that I could not understand why he was jerking me around like this. He explained to me that he had no authority. No one was going to give him money to settle this case in the next three years. Then he said to me that if I would take half, which would be three hundred dollars on a six hundred dollar claim, he would go to his boss and see what he could do. I told him that half barely covered the filing fee. He told me that was not his problem. If I wanted it, he would see if he could do something for me, if I did not, then I should call him in three years.
We have prosecuted a significant number of injury cases against government entities, mostly the City of Lowell. They all follow more or less the same pattern: We send a presentment. It gets ignored. We file suit. We are largely ignored. We jump through the hoops associated with the litigation process. When the case is close to trial, we get a phone call. When the Superior Court had court ordered mediation, we would usually resolve the cases there, but that too would be only a few months in advance of the trial date. I tell injury clients with claims against the government on the very first day that they meet with me that I do not mind pursuing a case against the government, so long as the client is prepared to be patient. If the governmental agency is at fault, there is money at the end of the process. It just takes time. It is also a bit more work on our part, but that is what we get paid for. Anyone who tells you that going after the government is easy, and that they always settle is not being honest. Most governmental entities, like everyone else, usually settle. The overwhelming majority of accident cases of all stripes, except medical malpractice, ultimately settle. However, with governmental entities, you always have to go through the litigation process. They do not “just settle”.