Time to SUE THE GOVERNMENT But Wait, Where Should I Start?

By Neil Stubbs

Note: This article focuses solely on state and local claims due to page limitations. Additionally, it's important to note that this is not a comprehensive guide to filing a tort claim. Rather, it provides a brief overview, a scratch-and-sniff review, to point you in the right direction.

So, you're getting ready to sue the State or another local government entity. You've prepared your case well in anticipation of filing. You still have plenty of time within the statute of limitations. Your complaint is drafted, edited, and seems ready to go. Things are progressing as expected.

However, while conducting some last-minute research on the case, you realize that you've missed a crucial step in the process: you haven't filed an administrative tort claim. YIKES! It's a significant omission, but luckily, you caught it before filing the lawsuit.

You have now gone down a tort-claim rabbit hole, bringing you back to 1961 when the Legislature waived Sovereign Immunity for State claims in RCW 4.92.060. You then make it up to 1971 when Sovereign Immunity was waived for local government entities in RCW 4.96.010(1). Next you familiarize yourself with the 2009 amendments to RCW 4.92.100 and RCW 4.96.020 and are beginning to feel comfortable enough to draft your tort claim.

What is an Administrative Claim for Damages?

An administrative claim for damages is a mandatory requirement before filing a lawsuit against a state and/or local government entity. The purpose of the administrative tort claim is to notify the government entity of the claim and give them an opportunity to investigate and potentially settle it.

For both state and local claims, the claim for damages must be presented at least 60 calendar days before filing the lawsuit. Failure to comply with the administrative claim for damages requirements will result in a dismissal due to lack of subject matter jurisdiction.

For state claims a good starting point is RCW 4.92.110, and for local government claims refer to RCW 4.96.020.

RCW 4.92.110: No action shall be commenced against the state for damages arising out of tortious conduct until sixty days have elapsed after the claim is presented to and filed with the risk management office. The applicable period of limitations within which an action must be commenced shall be tolled during the sixty- day period.

RCW 4.96.020(2): No action shall be commenced against any local governmental entity for damages arising out of tortious conduct until sixty days have elapsed after the claim has first been presented to and filed with the governing body thereof. The applicable period of limitations within which an action must be commenced shall be tolled during the sixty-day period.

(I have never witnessed nor even heard of a government entity settling a claim within the 60-day claims period. If you have, I would love to discuss that case with you!)

How to File a Claim Form

Statutes specify that a tort claim is considered "presented" when the claim form is:

• Delivered in person to the state or local government agent.
• Sent via regular mail (for local governments, actual receipt by the local government agent is required).
• Sent via registered mail.
• Sent via certified mail with a return receipt requested.

The presentation requirements can be found in RCW 4.92.100(1) for state claims and RCW 4.96.020 for local claims. Familiarize yourself with these requirements and determine where the claim form must be sent early in the process.

What Should be Included in an Administrative Claim for Damages?

As outlined in RCW 4.92.100(1)(a) and RCW 4.96.020(3), the standard tort claim form must include, at a minimum, the following information:

• The claimant's name, date of birth, and contact information.
• Description of the conduct and circumstances that led to the injury or damage.
• Description of the injury or damage.
• Statement of the time and place when the injury or damage occurred.
• List of names and contact information of all persons involved, if known.
• Statement of the amount of damages claimed.
• Statement of the claimant's actual residence at the time of presenting the claim and when the claim arose.

RCW 4.92.100(3) and RCW 4.96.020(5) state that "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." This language is rather squishy and seems to allow for some flexibility in compliance. However, it is prudent practice to always aim for more than “substantial compliance.” Do not provide opposing counsel with the opportunity to argue that you did not substantially comply with the statutory requirements.

Pro Practice Tips

Approach your work like a meticulous contractor: measure twice, cut once.

• Read the statutes both before and after drafting your claim form.
• Create a checklist of the minimum statutory requirements.
• Compare your completed claim form to the requirements specified in the statutes.
• Review your completed claim form multiple times.
• Reach out to other practitioners who have handled similar cases – sharing practice experience can go a long way here.

Be mindful of the Statute of Limitations!

• This is always important, but it becomes particularly crucial when filing your tort claim near the SOL deadline.
• The 60-day claim waiting period tolls the applicable statute of limitations, but don't solely rely on this tolling period to get you through a potential statute issue.
• If you're nearing the applicable statute of limitations and you've filed a claim form that likely doesn’t substantially comply with the statutory requirements, it's advisable to contact your malpractice carrier.

What if your plaintiffs require anonymity?

• Privacy may be necessary for various reasons, such as claims involving minors or highly personal matters like sexual abuse.
• In these cases, I recommended reaching out to the government's attorney to inquire if their client will accept a tort claim with aliases such as "Jane 1," while confidentially providing the plaintiffs' names directly to the attorney.
• While the government is not obligated to accept such a request, it doesn't hurt to ask.

When a government entity responds to your complaint, be sure to send interrogatories seeking information about the factual and legal basis for any defenses based on alleged noncompliance with the claim statutes.

• Send these interrogatories even if the government's answer does not raise a defense based on the claim statutes (jurisdictional defenses may be raised at any time, even if not pleaded).
• If discovery reveals a valid defense, correct it if possible.
• If the defense lacks a basis, consider moving for summary judgment.
• Never assume that the claim statute requirements have been met without thorough compliance with the statute and rigorous discovery to gather evidence supporting a defense.

 

Neil Stubbs is an attorney at Evergreen Personal Injury Counsel in Tacoma, Washington. Neil was born & raised in Tacoma and enjoys mountain biking and backcountry snowboarding. Neil can be reached at nstubbs@epic-law.com.