32 C.F.R. Subpart C—Claims Arising From Activities of National Guard Personnel While Engaged in Duty or Training
Title 32 - National Defense
The statutory authority for this chapter is contained in the Act of 13 September 1960 (74 Stat. 878, 32 U.S.C. 715), commonly referred to as the National Guard Claims Act (NGCA), as amended by Public Law 90–486, 13 August 1968 (82 Stat. 756), Public Law 90–525, 26 September 1968 (82 Stat. 877), Public Law 91–312, 8 July 1970 (84 Stat. 412), and Public Law 93–336, 8 July 1974, (88 Stat. 291); and the Act of 8 September 1961 (75 Stat. 488, 10 U.S.C. 2736) as amended by Public Law 90–521, 26 September 1968 (82 Stat. 874), Public Law 97–124, 29 December 1981 (95 Stat. 1666), and Public Law 98–564, 30 October 1984 (98 Stat. 2918). For purposes of §§536.70 to 536.81 the following terminology applies: (a) ARNG personnel. A member of the ARNG engaged in training or duty under 32 U.S.C. 316, 502, 503, 504, 505, or 709. (b) Claimant. An individual, partnership, association, corporation, country, State, Commonwealth, territory or a political subdivision thereof, or the District of Columbia, presenting a claim and meeting the conditions set forth in §536.5. The term does not include the U.S. Government, any of its instrumentalities, except as prescribed by statute, or a State, commonwealth, territory or the District of Columbia which maintains the unit to which the ARNG personnel causing the injury or damage are assigned. This exclusion does not ordinarily apply to a unit of local government which does not control the ARNG organization involved. As a general rule, a claim by a unit of local government other than a State, commonwealth or territory will be entertained unless the item claimed to be damaged or lost was procured or maintained by State, commonwealth, or territorial funds. (a) Sections 536.70 through 536.81 apply in all places and set forth the procedures to be followed in the settlement and payment of claims for death, personal injury, or damage to or loss or destruction of property caused by members or employees of the ARNG, or arising out of the noncombat activities of the ARNG when engaged in training or duty under 32 U.S.C. 316, 502, 503, 504, 505, or 709, provided such claim is not for personal injury or death of a member of the Armed Forces or Coast Guard, or a civilian officer or employee whose injury or death is incident to service. (b) A claimant dissatisfied with an administrative settlement under §§536.70 through 536.81 as the result of activities of the ARNG of a State, Commonwealth, or territory is not entitled to judicial relief in an action against the United States. Whether he or she has a legal cause of action or may file an administrative claim against such a political entity depends upon controlling local law. (c) Claims arising out of activities of the ARNG when performing duties at the call of the governor of a State maintaining the unit are not cognizable under §§536.70 through 536.81 or any other law, regulation or appropriation available to the Army for the payment of claims. Such claims should be returned or referred to the authorities of the State for whatever action they choose to take, and claimants should be informed of the return or referral. Care should be taken to determine the status of the unit and members at the time the claims incident occurred, particularly in civil emergencies as units called by the governor are sometimes “federalized” during the call-up. If the unit was “federalized” at the time the claim incident occurred, the claim will be cognizable under §§536.20 through 536.35, 536.50, or 536.90 through 536.97 or other sections pertaining to the Active Army. (a) Tort claims. All claims for personal injuries, death, or damage to or loss of real or personal property, arising out of incidents occurring on or after 29 December 1981, based on negligent or wrongful acts or omissions of ARNG personnel acting within the scope of employment, within the United States while engaged in training or duty under 32 U.S.C. 316, 502, 503, 504, 505, or 709 will be processed under the FTCA, §536.50. Such claims arising before 29 December 1981 will, except as modified herein, be processed and settled in accordance with the provisions of §§536.20 through 536.35. (b) Noncombat activities. A claim incident to the noncombat activities of the ARNG while engaged in duty or training under 32 U.S.C. 316, 502, 503, 504, 505, or 709 may be settled under §§536.70 through 536.81. “Noncombat activities” are defined in §536.3. (c) Subrogated claims. Subrogated claims will be processed as prescribed in §536.5(b). (d) Advance payments. Advance payments in partial settlement of meritorious claims to alleviate immediate hardship are authorized as provided in §536.13. The type of claims listed in §536.24 as not payable are also not payable under §§536.70 through 536.81. Except where claims are regularly paid from State sources, for example, insurance, court of claims, legislative committee, etc., the appropriate adjutant general will ensure that each incident which may give rise to a claim cognizable under §§536.70 through 536.81 is reported immediately by the most expeditious means to the area claims office in whose geographic area the incident occurs or to a claims processing office designated by the area claims office. The report will contain the following information: (a) Date of incident. (b) Place of incident. (c) Nature of incident. (d) Names and organizations of ARNG personnel involved. (e) Names of potential claimant(s). (f) A brief description of any damage, loss, or destruction of private property, and any injuries or death of potential claimants. Where there is a remedy against the State, as a result of either waiver of sovereign immunity or where there is liability insurance coverage, the following procedures apply: (a) Where the State is insured, direct contact with State or ARNG officials rather than the insurer is desirable. Regular procedures will be established and followed wherever possible. Such procedures should be agreed on by both local authorities and the appropriate claims authorities subject to concurrence by the Commander, USARCS. Such procedures will be designed to ensure that local authorities and U.S. authorities do not issue conflicting instructions for processing claims, and whenever possible and in accordance with governing local and Federal law, a mutual arrangement for disposition of such claims as in paragraph (c) of this section is worked out. Amounts recovered or recoverable by claimant from any insurer (other than claimant's insurer who has obtained no subrogated interest against the United States) will be deducted from the amount otherwise payable. (b) If there is a remedy against the State or its insurer, the claimant may be advised of that remedy. If the payment by the State or its insurer does not fully compensate claimant, an additional payment may be made under §§536.70 through 536.81. If liability is clear and claimant settles with the State or its insurer for less than the maximum amount recoverable, the difference between the maximum amount recoverable from the State or its insurer and the settlement normally will be also deducted from the payment by the United States. (c) If the State or its insurer desires to pay less than their maximum jurisdiction or policy limit on a basis of 50 percent or more of the actual value of the entire claim, any payment made by the United States must be made directly to the claimant. This can be accomplished by either having the United States pay the entire claim and have the State or its insurer reimburse its portion to the United States, or by having each party pay its agreed share directly to the claimant. If the State or its insurer desires to pay less than 50 percent of the actual value of the claim, the procedure set forth in paragraph (d) of this section will be followed. (d) If there is a remedy against the State and the State refuses to make payment, or there is insurance coverage and the claimant has filed an administrative claim against the United States, forward file with a memorandum of opinion to the Commander, USARCS, including information as to the status of any judicial or administrative action the claimant has taken against the State or its insurer. The Commander, USARCS, will determine whether the claimant will be required to exhaust his remedy against the State or its insurer, or whether the claim against the United States can be settled without such requirement. If the Commander, USARCS, determines to follow the latter course of action, he will also determine whether an assignment of the claim against the State or its insurer will be obtained and whether recovery action will be taken. The State or its insurer will be given appropriate notification in accordance with State law necessary to obtain contribution of indemnification. The procedures set forth in §536.9(f) are applicable. With respect to claims arising before 29 December 1981, an ARNG driver acting pursuant to the authorities cited in §536.73(a) is not protected by the provisions of the Drivers Act (28 U.S.C. 2670(b)) and the driver may be sued individually in State court. When this situation occurs, it should be monitored closely by ARNG authorities. If possible an early determination will be made as to whether any private insurance of the ARNG tortfeasor is applicable. Where such insurance is applicable and the claim against the United States is of doubtful validity, final actions will be withheld pending resolution of the demand against the ARNG tortfeasor. If, in the opinion of the claims approving or settlement authority, such insurance is applicable and the claim against the United States is payable in full or in a reduced amount, settlement efforts will be made either together with the insurer or singly by the United States. Any settlement will not include amounts recovered or recoverable as in §536.9. If the insurance is not applicable, settlement or disapproval action will proceed without further delay. A claim may be settled under §§536.70 through 536.81 only if presented in writing within 2 years after it accrues, except that if it accrues in time of war or armed conflict, or if war or armed conflict intervenes within 2 years after it accrues, and if good cause is shown, the claim may be presented not later than 2 years after war or armed conflict is terminated. As used in this section, a war or armed conflict is one in which any Armed Force of the United States is engaged. The dates of commencement and termination of an armed conflict must be established by concurrent resolution of Congress or by determination of the President. A claim must be presented to the appropriate Federal agency. Receipt of a written claim by any full time officer or employee of the National Guard will be considered receipt. However, the statute of limitations is tolled if a claim is filed with a State agency, the claim purports to be under the NGCA and it is forwarded to the Army within 6 months, or the claimant makes inquiry of the Army concerning the claim within 6 months. If a claim is received by a DA official who is not a claims approval or settlement authority, the claim will be transmitted without delay to the nearest approval or settlement authority. (a) The form of a claim under §§536.70 through 536.81 will be as described in §536.5 (d) and (e). (b) So far as they are not inconsistent with §§536.70 through 536.81, the guidance set forth in §§536.10 through 536.12 will be followed in processing a claim under §§536.70 through 536.81. (c) The following provisions are applicable to claims under §§536.70 through 536.81 and are hereby incorporated by reference: (1) §536.28 (applicable law); (2) §536.29 (determination of quantum); (3) §536.31 (claims over $100,000); (4) §536.32 (settlement procedures); (5) §536.33 (attorney fees). Procedures concerning settlement agreements will be in accordance with §536.10, except that the agreement will be modified to include a State and its National Guard in most cases. A copy of the agreement will be furnished to State authorities and the individual tortfeasor.
Title 32: National Defense
PART 536—CLAIMS AGAINST THE UNITED STATES
Subpart C—Claims Arising From Activities of National Guard Personnel While Engaged in Duty or Training
§ 536.70 Statutory authority.
§ 536.71 Definitions.
§ 536.72 Scope.
§ 536.73 Claims payable.
§ 536.74 Claims not payable.
§ 536.75 Notification of incident.
§ 536.76 Claims in which there is a State source of recovery.
§ 536.77 Claims against the ARNG tortfeasor individually.
§ 536.78 When claim must be presented.
§ 536.79 Where claim must be presented.
§ 536.80 Procedures.
§ 536.81 Settlement agreement.
