43.1204 Statute of limitations.

Cite as [A.S.C.A. § 43.1204]

A tort claim against the government shall be forever barred unless an action on it is begun within 2 years after the claim accrues.

History: 1967, PL 10-1.

Case Notes:

Tort Liability Act provides that no tort action may be instituted against ASG unless the claimant has first presented the claim in writing to the Attorney General, and the claim has been finally denied by the Attorney General. A.S.C.A. § 43.1204. Randall v. American Samoa Gov't, 19 A.S.R.2d 111 (1991).

A prospective plaintiff's "claim" under the Government Tort Liability Act does not accrue, and therefore the two-year limitation period does not begin to run, until after the claim has been finally denied by the Attorney General. A.S.C.A. §§ 43.1204-43.1205. Randall v. American Samoa Gov't, 19 A.S.R.2d 111 (1991).

When plaintiff is statutorily required to file an administrative claim with the attorney general before he may sue the government, the filing of such a claim begins an action and tolls the statute of limitations. A.S.C.A. § 43.1204. Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48 (1990).

Because an injured person cannot sue until he has exhausted his administrative remedy, the Government The right to sue under the Government Tort Liability Act is absolutely barred by failure to bring an administrative claim within a two-year period from the date of injury, and the Attorney General has a reasonable time in which to review such claim. A.S.C.A. §§ 43.1204-43.1205. Randall v. American Samoa Gov't, 19 A.S.R.2d 111 (1991).

An action under the Government Tort Liability Act is subject to dismissal when the statute of limitations has run or when administrative remedies have not been exhausted. A.S.C.A. §§ 43.1204-43.1205; T.C.R.C.P. 12(b). Randall v. American Samoa Gov't, 19 A.S.R.2d 111 (1991).

Where statute provides that minor has one year after termination of minority to commence any action regardless of any otherwise applicable limitation period, an action brought within this one year period is not barred by two year statute of limitations on tort actions against the government. A.S.C.A. §§ 43.0126, 43.1204. Lutu v. American Samoa Government, 7 A.S.R.2d 61 (1988).

Under statute providing that minors shall have one year after the termination of their disability to commence any action, a claim by a minor against the government is not barred so long as action is begun within one year after attainment of majority or appointment of a guardian ad litem, notwithstanding the two-year statute of limitations otherwise applicable to actions against the government. A.S.C.A. §§ 43.0126, 43.1204. Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88 (1988).

Government Tort Liability Act requires a tort claim against the government to be filed within two years after the claim accrues. A.S.C.A. § 43.1204. Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48 (1990).

Under the statute of limitations applicable to the Government Tort Liability Act, the High Court has construed the term "claim" as being synonymous with "cause of action." A.S.C.A. § 43.1204. Randall v. American Samoa Gov't, 19 A.S.R.2d 111 (1991).

Under the Government Tort Liability Act, injured persons may bring suit within two years from the date of injury (or, in certain cases, of knowledge thereof). A.S.C.A. § 43.1204. Randall v. American Samoa Gov't, 19 A.S.R.2d 111 (1991).

An action under the Government Tort Liability Act is subject to dismissal when the statute of limitations has run or when administrative remedies have not been exhausted. A.S.C.A. §§ 43.1204-43.1205; T.C.R.C.P. 12(b). Randall v. American Samoa Gov't, 19 A.S.R.2d 111 (1991).

ASG waived the statute of limitations applicable to the Government Tort Liability Act when it did the following: filed an answer which affirmatively admitted that the Court had jurisdiction over the parties and the subject matter; vigorously litigated the merits of the action for several years; required the defendant to undergo a deposition and to answer numerous interrogatories, requests for production of documents, and requests for admissions; sought and obtained affirmative relief from the Court by filing what amounted to a mandatory counterclaim, a permissive counterclaim, and another permissive counterclaim on behalf of a wholly-owned entity; and effectively reduced one of these claims to a substantial judgment. A.S.C.A. § 43.1204. Randall v. American Samoa Gov't, 19 A.S.R.2d 111 (1991).

The two-year statute of limitations applicable to the Government Tort Liability Act is not a jurisdictional prerequisite but is a statute of limitations, an affirmative defense which is waived if not affirmatively pled by the defendant. A.S.C.A. § 43.1204. Randall v. American Samoa Gov't, 19 A.S.R.2d 111 (1991).

Unlike its quite differently phrased and structured counterpart in the Federal Tort Claims Act, the statute of limitations applicable to American Samoa's Government Tort Liability Act has been held to be subject to tolling during the minority of an injured person. A.S.C.A. § 43.1204. Randall v. American Samoa Gov't, 19 A.S.R.2d 111 (1991).

In the absence of any evidence that the Fono meant the two-year limitation on tort actions against ASG to be construed and applied differently than the similar two-year limitation on tort actions against private persons, the High Court will not conclude that the Fono intended or would have intended the "harsh result" of depriving litigants against the Government of the benefit of the traditional rule that a party entitled to plead the statute of limitations can waive the statute by not pleading it as an affirmative defense and by proceeding to litigate the suit on its merits. A.S.C.A. § 43.1204. Randall v. American Samoa Gov't, 19 A.S.R.2d 111 (1991).

Prejudice to the plaintiff resulting from ASG's failure to plead in its answer the statute of limitations applicable to the Government Tort Liability Act should be evaluated as of the time that the defendant finally asserted the statute, not when plaintiff failed to plead the statute as a defense and could not have cured the defect in his action by filing a new complaint. A.S.C.A. § 43.1204. Randall v. American Samoa Gov't, 19 A.S.R.2d 111 (1991).

When the defense that the complaint was not filed within the Government Tort Liability Act's statute of limitations was not available at the time ASG filed its answer, failure to plead this defense did not amount to a waiver of the statute of limitations with respect to any future amendment of the complaint. A.S.C.A. § 43.1204. Randall v. American Samoa Gov't, 19 A.S.R.2d 126 (1991).

Even though the failure to plead in its answer the statute of limitations applicable to the Government Tort Liability Act could not be characterized as a waiver with respect to any future amendment of the complaint, ASG was estoppel from raising the statute of limitations with respect to an amended complaint when the same combination of defenses raised in its motion to dismiss could have been raised in its answer to the original complaint five years earlier, but the government instead vigorously litigated on the merits for several years and also sought affirmative relief from plaintiff by way of counterclaims and cross-claims. A.S.C.A. § 43.1204. Randall v. American Samoa Gov't, 19 A.S.R.2d 126 (1991).

When plaintiff is statutorily required to file an administrative claim with the attorney general before he may sue the government, the filing of such a claim begins an action and tolls the statute of limitations. A.S.C.A. § 43.1204. Mataipule v. Tifaimoana Partnerships, Ltd., 16 A.S.R.2d 48 (1990).