43.1205 Prerequisite adminstrative remedy.

Cite as [A.S.C.A. § 43.1205]

(a) An action may not be instituted upon a claim against the government for money damages for damage to or loss of property, or personal injury or death, caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment unless the claimant has first presented the claim to the Attorney General and his claim has been finally denied by the Attorney General in writing, notice of the denial sent to claimant by certified or registered mail. The failure of the Attorney General to make a final disposition of a claim within 3 months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for the purposes of this section.

(b) The Attorney General shall, in accordance with regulations prescribed by the Governor, consider and determine, compromise or settle any claim for money damages against the government for damage to or loss of property, or personal injury or death, caused by the negligent or wrongful act or omission of any employee of a government agency while acting within the scope of his office or employment, under circumstances where the government, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

History: 1967, PL 10-1; amd 1985, PL 19-11 § 1.

Amendments: 1985 Added “a”; replaced “6” with “3”

Case Notes:

Prerequisite to tort liability action against the government of American 5amoa is presentation of claim to Attorney General, in re Faoato v. Government of American Samoa ASR (1979).

Complaint when filed was jurisdictionally deficient for failure to file with Attorney General which is mandatory. Although later filed with Attorney General, complaint was never amended therefore must be dismissed. Gobrait v. American Hotels, inc., A5R (1978).

Requirement for sum certain in suit against government is mandatory under Government Tort Liability Act: action dismissed with prejudice for failure to state a sum certain in the claim. Kelemete Moananu v. A.S.G. et. al. C.A. 133-85 (11/12/85).

Under statute requiring plaintiff to file an administrative claim before bringing action against the government, administrative claim by mother that she and her family had suffered damages adequately notified the government of the claims of her minor children, so that suit by minors should not be dismissed for failure to exhaust administrative remedies. A.S.C.A. § 43.1205(a). Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88 (1988).

For a trial court to have subject matter jurisdiction over actions arising under the Government Tort Liability Act, an administrative claim must first be made and either denied or ignored for three months. A.S.C.A. § 43.1205(a). Mataipule v. Tifaimoana Partnership, Ltd. (Mem), 14 A.S.R.2d 100 (1990).

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).

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).

The requirement of filing an administrative claim before filing suit under the Government Tort Liability Act is jurisdictional. A.S.C.A. § 43.1205. Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d 23 (1992).

Although based on the Federal Tort Liability Act, the territorial Government Tort Liability Act does not contain the former's exception for third-party complaints from the requirement that an administrative-claim is a prerequisite to filing suit. 28 U.S.C. § 2675; A.S.C.A. § 43.1205. Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d 23 (1992).

Though modeled on the Federal Tort Claims Act, as amended in 1966, the territorial Government Tort Liability Act does not contain the F.T.C.A.'s exception from the administrative-claim prerequisite for a cause of action asserted by third-party complaint, cross-claim, or counterclaim. 28 U.S.C. § 2675(a); A.S.C.A. § 43.1205(a). Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d 88 (1992).

Claims against the American Samoa Government for personal injury or property damage must be administratively submitted under the Government Tort Claims Act to the Attorney General for resolution before judicial action is instituted. A.S.C.A. § 43.1205. Crispin v. American Samoa Gov't, 21 A.S.R.2d 60 (1992).

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).