Can you sue the military for the wrongful death of a loved one?
Losing a family member is always traumatic. What’s worse is that when the family member was serving in the military, it can be difficult, if not impossible, to get answers about the service member’s death. In some cases, you may have to file a wrongful death lawsuit against the military to get the answers you need about your family member’s death.
Yet, some family members may not be able to sue the military for wrongful death. The laws governing wrongful death lawsuits and the military are strict. You must meet certain requirements to file a wrongful death lawsuit against the military.
Filing Wrongful Death Claims Under The Federal Tort Claims Act
The federal government, including branches of the military, is protected by what’s called “sovereign immunity.”
Sovereign immunity prevents a person from suing the government unless the government agrees to the lawsuit. Sadly, this immunity bars many people from seeking relief from the government for damages sustained while the government was performing official acts.
However, there are exceptions to the sovereign immunity rule. The Federal Tort Claims Act (FTCA) outlines various causes of action in which the government may be sued without its consent. It could be possible for a person to sue the government for damages under the FTCA.
Michele Mirman, an attorney at Mirman, Markovits & Landau, explains, “A family member might have a cause of action under the FTCA if it can be shown that the government was negligent in causing the death of a loved one. Unfortunately, the FTCA bars some lawsuits against the military for wrongful death and personal injury of a family member.”
Who Can Sue the Military Under the Federal Tort Claims Act?
A civilian has the right to sue the military under the FTCA for negligence. The right extends to veterans and military dependents. Therefore, a family member of a service member or a retired service member may file a wrongful death lawsuit against the military for the death of a family member.
It is important to remember that the right to sue is not the same as proving your claim in court. While a civilian or a veteran may have the right to file a wrongful death lawsuit against the military, that person must prove each of the required legal elements of the wrongful death claim to win in court.
Active-duty service members are typically not permitted to sue the government for injuries or fatalities sustained because of their military service under the Feres Doctrine. The Feres Doctrine is from a 1950 U.S. Supreme Court case in which the court ruled that active-duty service members are barred from filing negligence claims against the government.
Unfortunately, the restriction upon filing negligence claims against the military also applies to most military family members. Therefore, an active duty spouse cannot file a wrongful death claim or negligence claim against the military for the death of a spouse who was on active duty at the time of the spouse’s death.
Active service members may file claims on behalf of a minor civilian family member if the minor was the primary victim of the negligent act.
Civilian Wrongful Death Claims Under The Military Claims Act
A civilian may have a right to sue the military under the Military Claims Act (MCA) for the death of a family member. The MCA gives a family member the right to bring an action against the military if an employee of the military negligently caused an injury or death to another person. The military employee must have been acting within the scope of his or her employment at the time of the injury or death for a claim to fall within the MCA.
Beginning the Process of Filing a Wrongful Death Lawsuit Against the Military
The first step in filing a lawsuit against the military is to file an administrative claim. The administrative claim must be adjudicated before you can file your lawsuit against the military.
The military has six months to respond to your administrative claim. If the military denies responsibility for your claim or only agrees to accept partial liability for the claim, you may then proceed with a lawsuit against the military.
Suing the military is a complicated undertaking. Strict deadlines and rules must be followed when filing a wrongful death claim against the military. Fighting the government can be a long and exhausting process.
It is wise to contact a military lawyer familiar with the laws governing claims against the government. You need every advantage possible if you intend to go up against the military in court.