Monday, February 25, 2008

Pequot Tribal Laws on Tort Claims

It seems that with all the talk of the Pequot limitations of liability, someone should actually post those laws so that the details could be seen. After a review, it seems that the Tribe gves beeter than most states when you look at the damages to be awarded. It also has a MINIMUM damage award for wrongful death of $100,000. I do note that there is no provision to require a jury trial--so you don't have to worry about a jury of your "peers," just a Judge.

In any event, here is the relevant law from the Mashantucket Pequod Tribal Laws:

TITLE IV. TORT CLAIMS (GAMING ENTERPRISE)
CHAPTER 1

Section 1. Definitions
Unless otherwise required by the context, the following words and phrases shall be defined as follows:
a. “Mashantucket Pequot Gaming Enterprise” or “Gaming Enterprise” means the arm of the tribal government established by the Mashantucket Pequot Tribal Council to conduct the gaming operations of the Tribe, and includes its officers, agents, servants and employees.
b. “Gaming Enterprise Site” means the building or buildings in which Foxwoods Resort Casino is situated, and all parking areas and access roads appurtenant thereto and located on the Reservation of the Tribe.
c. “Claim” means a petition for an award under this Law. A claim may be filed with respect to any injury as defined in this Title.
d. “Person” means any individual, firm, partnership, corporation, limited liability company, association, or any other legal entity.
e. “Dangerous Condition” means a physical aspect of a facility or the use thereof which constitutes an unreasonable risk to human health or safety, which is known to exist or which in the exercise of reasonable care should have been known to exist and which condition is proximately caused by the negligent acts or omissions of the Gaming Enterprise in constructing or maintaining such facility. For the purposes of this subsection, a dangerous condition should have been known to exist if it is established that the condition had existed for such a period of time and was of such a nature that, in the exercise of reasonable care, such condition and its dangerous character should have been discovered. A dangerous condition shall not exist solely because the design of any facility is inadequate or due to the mere existence of wind, water, ice or temperature by itself, or by the mere existence of a natural physical condition. Nothing in this Section shall preclude an accumulation of water, snow, or ice from being found to constitute a dangerous condition when the Gaming Enterprise fails to use existing means available to it for the removal of such accumulation and when the Gaming Enterprise had notice of such accumulation and reasonable time to act.
f. “Injury” means death, harm to a person, or damage to or loss of property which if inflicted by another constitutes a tort under tribal law.
g. “Actual Damages” means the ascertainable loss of money or property sustained as a result of an injury.

Section 3. Jurisdiction over Tort Claims and Waiver of
Sovereign Immunity from Suit
a. The tribal court shall have jurisdiction over tort claims against the Gaming Enterprise or arising at the Gaming Enterprise Site.
b. The Tribe hereby waives the sovereign immunity from suit of the Gaming Enterprise for actions in the tribal court founded upon a tort of the Gaming Enterprise. Nothing herein shall be construed as a waiver of the sovereign immunity from suit of the Tribe or the Gaming Enterprise in state or federal court or in any action before any state or federal agency or in any other forum or context.
c. Members of the Tribal Council remain immune from suit for actions taken within the scope of their duties and responsibilities as members of the Tribal Council.

Section 4. Awards
In any judgment under this Law against the Gaming Enterprise, the court may award damages as hereinafter provided:
a. The court may enter an award for actual damages.
b. For any injury resulting in death, the Court may enter an award for actual damages, but in no event shall the award be less than $100,000.
c. In addition to an award for actual damages, the court may enter an award for any injury resulting in permanent significant disfigurement or permanent significant scar of the face, head, or neck, or, on any other area of the body only if the resulting permanent significant disfigurement or permanent significant scar handicaps the claimant in obtaining or continuing to work. In determining an appropriate damage award for a permanent significant disfigurement or permanent significant scar, the court shall calculate such an award pursuant to XIII M.P.T.L. ch. 4, Sections 12(c) and 12(d); except that when the claimant is not employed, the court shall use the rate of $200 per week, without deduction.
d. In addition to an award for actual damages, the court may enter an award for pain and suffering or mental anguish in an amount which shall not exceed 100% of the actual damages sustained.
e. No other award or judgment shall enter under this Law, including:
(1) no award based upon a rule of law imposing absolute or strict liability;
(2) no award for punitive or exemplary damages;
(3) no award based upon a claim of loss of consortium; and
(4) no judgment for declaratory or injunctive relief against the Gaming Enterprise.

Section 5. Limitation on Presentation of Claim
a. Any action under this Law must be filed within one year from the date the claim accrued. Claims brought under this Law shall be deemed to accrue on the date when the injury is sustained.
b. The defendant must present the issue of failure to file a claim as stated in Section 5(a) to the Court as an affirmative defense. Such defense shall not be considered jurisdictional in nature.

Section 6. Attachment Prohibition
Neither execution nor attachment shall issue against the Gaming Enterprise or the Tribe in any claim for injury or proceedings initiated under this Law.

LEGISLATIVE HISTORY REVISIONS TO TITLE IV –
TORT CLAIMS (GAMING ENTERPRISE)
A. Background
Title IV of the Mashantucket Pequot Tribal Laws was originally enacted in 1992 as TCR011092-01, called the “Sovereign Immunity Waiver Ordinance.” In adopting that Resolution, the Tribal Council provided “reasonable procedures for the disposition of tort claims arising from alleged injuries to patrons of its gaming facilities,” as required by the Mashantucket Pequot Gaming Procedures, 56 Fed.Reg. 24996 (May 31, 1991). Since 1992, tort claims against the Gaming Enterprise have been resolved pursuant to this Law. In addition, the Gaming Enterprise has grown and the Tribal Council has enacted several other laws. In its continuous review of tribal laws and in an effort to respond to the needs of the community and address issues or ambiguities that have arisen, the Judicial Committee conducted an extensive review of the tort claims law and recommended changes to the Tribal Council.
The following is a summary of the amendments to Title IV. Tort Claims (Gaming Enterprise) and the intent of the Tribal Council in adopting these amendments.

B. Summary of Amendments
1. Jurisdiction and Waiver of Sovereign Immunity from Suit
Waiver of Sovereign Immunity From Suit.
Prior to the amendments, Title IV contained a waiver of sovereign immunity that allowed suits against the Gaming Enterprise, an arm of the tribal government, for three
specific types of tort claims: 1. injuries proximately caused by the negligent acts or omissions of the Gaming Enterprise (including its employees); 2. injuries proximately caused by the negligent acts or omissions of tribal security officers; and 3. injuries proximately caused by the dangerous condition of the property at the Gaming Enterprise (dangerous condition being defined in the law).
The amendment to this Section aligns the waiver of sovereign immunity with the waiver in Title XII. Section 2.a., for actions “founded upon a tort.” Thus, the waiver no longer is limited to claims based upon negligence. This waiver is intended to include intentional torts, but would not include so called “constitutional” torts or statutory torts. A “constitutional” tort depends upon rights guaranteed by either the U.S. Constitution or the various state constitutions. Facially, these claims would not be applicable to the Gaming Enterprise or the Tribe, since neither the U.S. Constitution nor state constitutions are applicable to the Tribe, as a sovereign predating the state and federal governments. The Tribe’s Constitution does not provide for or address individual rights vis-à-vis the tribal government and, therefore, could not form the basis of the typical constitutional tort.
Nor does this waiver encompass any type of analogous claim based upon the rights recognized in the Indian Civil Rights Act, which contains similar, although not identical, restraints against tribal governmental actions regarding the civil rights of individuals. The Tribal Council intends to provide separately for claims based upon alleged violations of civil rights and thus, such claims are not within the purview of the waiver of immunity contained in this Law.
All references to or reliance upon the law of the state of Connecticut have been deleted with the intent of clarifying that the tribal court is not bound by state law in any respect. The waiver of immunity does not extend to any type of “statutory” torts defined by any other jurisdiction.

2. Jurisdiction
The amendments clarify that the tribal court has jurisdiction over tort action against the Gaming Enterprise and arising at the Gaming Enterprise site that may not involve the Gaming Enterprise as a party (i.e., private party actions).
3. Damage Awards
Prior to the amendments, Title IV Limited damage awards in several ways. In reviewing the tribal law and its implementation over the past nine years, the Council has amended the law to change some of the limitations on damages. The amendments include the following:
a. Increase awards for pain and suffering. The tribal court system has been limited in its authority to render awards for pain and suffering, in comparison to other judicial systems. Plaintiffs’ attorneys generally have been critical of this limitation and the judiciary has expressed some concern in not being able to award greater damages in some cases. The tribal court system also has been complimented by those who favor tort reform and believe there should be some limits placed upon excessive awards. In addition, the claims handling and adjudication processes in the Tribal system, in large part, have worked well in resolving and paying claims quickly and without the delays found in other systems. The amendments increase the cap on damages for pain and suffering from 50% of actual damages to 100% of actual damages.
b. Minimum award in injuries resulting in death. Although there has never been a claim brought against the Gaming Enterprise involving a death, the present system may not be able to adequately compensate the family or survivors in the event of a death proximately caused by the Gaming Enterprise. The law has been amended to provide for a minimum recovery of $100,000 in wrongful death cases which will address the potentially inadequate recovery that might result in some cases where the actual damages are negligible. In addition to the minimum award for actual damages, a litigant could seek an award for pain and suffering not to exceed a total of 100% of the actual award.
c. Damages for permanent disfigurement or scarring. Another change to the present system is to provide relief to an injured person when a plaintiff has a permanent significant disfigurement or scar on the face, neck or head, or if on any other area of the body when the person can demonstrate that it handicaps the person in obtaining or continuing to work. The amendment allows a plaintiff in this instance to receive an additional award for such disfigurement or scarring, and directs the court to calculate this award in accordance with the Tribe’s Workers’ Compensation Code approach, which ties the award to average weekly salary for a limited number of weeks.
d. Elimination of language which limits awards to extent covered by insurance. The amendments eliminate language limiting claims against the Gaming Enterprise to only those covered by insurance. Previously, the definitions of “Injury” and “Actual Damages” included language defining them as having to be “expressly covered by the liability insurance of the Gaming Enterprise without regard to any deductible amount contained in the insurance policy.” The Gaming Enterprise has extensive insurance coverage and this particular provision has not been used to deny liability.
e. Limitation on awards as to claims against the Gaming Enterprise. The limitations on damages concern claims against the sovereign only, and do not limit awards in claims between private individuals.

1 comment:

Middlelboro Review said...

Can you post the Mashpee Wampanoag laws for comparison?
Although the media report pertains to this tribe, it would seem that Middleboro should be aware of laws that will pertain to the Sovereign Nation in their midst.