451.4 - Defense of Suits Against Federal Employees in Operation of Motor Vehicles
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Date: 5/6/1987
OPR: Administration/Financial Management
1. Purpose. This chapter establishes policy and procedures within the USGS for the submission of the necessary documentation regarding these suits to the appropriate Solicitor's Office, Department of Justice, and to the appropriate United States Attorney.
2. Policy.
A. Authority. Public Law 87-258 provides that any civil action or proceeding brought in any court against any employee of the Government, or their estate, for damage to property or for personal injury, including death, resulting from the operation of any motor vehicle while the employee was acting within the scope of employment will be deemed to be an action or proceeding against the United States and will be defended by the Attorney General.
B. Determination by the Department of Justice. The Department of Justice is charged with making the determination of whether the Federal employee involved in such a suit was acting within the scope of employment at the time the accident occurred. In order to enable the Department of Justice to make such determination, the USGS must submit to the Solicitor's Office an Optional Form (OF) 26 as shown in Figure 1 for transmittal to the Department of Justice. OF 26 contains detailed information as to whether or not the employee was acting within the scope of employment at the time of an accident out of which a suit arose.
C. Potential Claims. In reporting an accident which involves private property or persons, or in discussing such an accident with a claimant or the claimant's representative, an employee shall not state a conclusion as to fault or responsibility. In addition, an employee must not attempt to negotiate settlement of a claim against the Government. Such an offer may be construed as an admission of liability, and may be prejudicial to the Government in subsequent litigation.
3. Responsibilities.
A. The Operator of Motor Vehicle Involved is responsible for:
(1) Preparation of OF 26 (Figure 1). OF 26 (Data Bearing Upon Scope of Employment of Motor Vehicle Operator) is designed to preserve pertinent facts relating to motor vehicle accidents and to facilitate the defense of suits against Federal employees which arise out of the operation of a motor vehicle while acting in the scope of their employment. It shall be filled out by the operator of the vehicle (when the operator has been incapacitated, someone shall act in the operator's behalf) at the time and at the scene of the accident, insofar as possible, in the following instances:
(a) Any accident involving a Government-owned vehicle (including GSA motor pool vehicles) which results in actual or alleged damage to, or destruction of, private property, or personal injury, including death, to any person and
(b) Any accident involving a non-Government-owned motor vehicle operated by a USGS employee who has been previously authorized to use such vehicle to carry out the employee's assigned duties, which results in actual or alleged damage to, or destruction of, private property, or personal injury, including death, to any person.
(2) Submission of OF 26 to Supervisor. The operator shall send completed OF 26 to the immediate supervisor.
(3) Submission of Process Papers. When a civil action or proceeding is brought against an employee, resulting from the employee's operation of a motor vehicle while acting within the scope of employment, the employee shall:
(a) Notify the immediate supervisor by giving verbal or telegraphic notice, immediately upon receipt of process papers and pleadings, or upon receipt of information regarding the commencement of such civil action or proceedings, and
(b) Deliver immediately all process papers and pleadings served upon the employee to the immediate supervisor.
B. The Immediate Supervisor of Motor Vehicle Operator Involved is responsible for:
(1) Reviewing, signing, and processing of OF 26 or completing OF 26 when the employee is incapacitated.
(2) Whenever the immediate supervisor or designated official has been notified of the commencement of a civil action against an employee:
(a) Notifying promptly (but in no event later than 24 hours) the appropriate Regional or Field Solicitor of the commencement of such civil action or proceedings and (in those cases where no Regional or Field Solicitor is available) the Associate Solicitor, Division of Energy and Resources with a copy of notification to the Division Tort Claims Officer.
(b) Forwarding all process papers and pleadings (in triplicate) including the completed OF 26 and other investigative material (SM 451.1) to the appropriate Regional or Field Solicitor or, if appropriate, to the Associate Solicitor, Division of Energy and Resources (SM 450.1).
C. The Appropriate Regional or Field Solicitor, upon receipt of information concerning the commencement of a civil action or proceeding against a USGS employee in a motor vehicle accident, is responsible for:
(1) Furnishing one copy of all process papers and pleadings and one copy of the investigative material (including OF 26) to the United States Attorney for the district wherein the action or proceeding is brought (Appendix 1 to 451 DM 4).
(2) Furnishing the Associate Solicitor, Division of Energy and Resources two copies of all process papers and pleadings, two copies of the investigative material (including OF 26), and a copy of the letter transmitting the items to the United States Attorney. The Associate Solicitor will send one copy of each to the Department of Justice.
4. Proof of Financial Responsibility. In certain cases, an employee is served papers requiring the employee to prove financial responsibility under State laws imposing such a requirement regarding automobile accidents. In addition, the employee's own insurance carrier may disclaim liability because of the Government Drivers Act. Under such circumstances, the employee shall immediately forward the papers to the appropriate Office of the Solicitor through the immediate supervisor together with the completed OF 26 and other investigative material. To meet the requirements of financial responsibility laws, the appropriate Office of the Solicitor will make or secure a finding concerning the applicability of the Federal Tort Claims Act as amended by the Government Drivers Act. This finding shall be forwarded to the State agency as proof of financial responsibility.
5. Liability Insurance. The Government Drivers Act does not provide absolute protection of immunity For example, if the Department of Justice or the Court determines that an employee was not acting within the scope of the employee's job in a given case, the employee may then be personally liable for the property damage and personal injuries involved. Even though the Department makes no recommendation or suggestion regarding an employee carrying a broad form of personal liability insurance, supervisors should call to the attention of motor vehicle operators the availability of such insurance. Employees must make their own decisions as to the desirability of carrying such insurance. Employees have in some instances paid premiums for insurance only to discover that the policy did not contain the intended liability coverage. Consequently, employees who decide to carry personal liability insurance should be sure to specify the coverage desired to fit their own requirements. The possibility of personal liability still existing under the Government Drivers Act should be explained to all motor vehicle operators.