Mendoza v. Isleta Resort and Casino, 011620 NMSC, S-1-SC-37034

Docket NºS-1-SC-37034
AttorneyBarnhouse Keegan Solimon & West LLP Dolph Barnhouse Kelli J. Keegan Christina S. West Albuquerque, NM for Petitioners Law Office of LeeAnn Ortiz, LLC LeeAnn Ortiz Albuquerque, NM for Respondent
Judge PanelWE CONCUR: JUDITH K. NAKAMURA, Chief Justice, BARBARA J. VIGIL, Justice, DAVID K. THOMSON, Justice ABIGAIL P. ARAGON, Judge Sitting by designation
Case DateJanuary 16, 2020
CourtSupreme Court of New Mexico

GLORIA MENDOZA, Worker-Respondent,





No. S-1-SC-37034

Supreme Court of New Mexico

January 16, 2020

ORIGINAL PROCEEDING ON CERTIORARI Leonard J. Padilla, Workers' Compensation Judge

Barnhouse Keegan Solimon & West LLP Dolph Barnhouse Kelli J. Keegan Christina S. West Albuquerque, NM for Petitioners

Law Office of LeeAnn Ortiz, LLC LeeAnn Ortiz Albuquerque, NM for Respondent



{¶1} This appeal asks us to resolve three questions: (1) whether the Pueblo of Isleta, in entering the 2015 Indian Gaming Compact, expressly and unequivocally waived its tribal sovereign immunity to permit jurisdiction shifting of workers' compensation claims originating on tribal land to the Workers' Compensation Administration; (2) whether Gloria Mendoza, (Worker) as a non-party to the Compact, can challenge the Pueblo's compliance with the Compact; and (3) whether Isleta Casino, an entity of the Pueblo of Isleta, is an indispensable party to a lawsuit against its workers' compensation insurers. We hold that there is no definitive jurisdiction shifting language in the Compact, there is no private right of action for Worker to mandate Compact compliance, and Isleta Casino, as a sovereign entity, is an indispensable party to Worker's claim, thus compelling dismissal of Worker's claim in its entirety.

{¶2} Worker filed a workers' compensation claim with the New Mexico Workers' Compensation Administration (WCA) after she suffered an on-the-job injury at Isleta Resort & Casino. Isleta Casino is located on the Pueblo of Isleta (the Pueblo). Because Worker's injury occurred within the Pueblo's sovereign jurisdiction, the WCA dismissed Worker's claim for lack of jurisdiction, referencing the Pueblo's tribal sovereign immunity. On account of the Pueblo's sovereign status, Worker's complaint was dismissed as to all parties, which included Hudson Insurance Company (Isleta Casino's insurer) and Tribal First (Hudson's third-party administrator) (hereinafter, collectively "Petitioners"1). Worker appealed the WCA's dismissal to the New Mexico Court of Appeals.

{¶3} In response to the Court of Appeals' decision, Petitioners petitioned this Court for certiorari.

{¶4} In response to the Court of Appeals' decision, Petitioners filed a petition for writ of certiorari with this Court. We granted certiorari and proceed to address the aforementioned issues. Due to the unusual procedural posture of this case and the lack of record before us, we narrowly limit the holding to the facts presented here. With that consideration, we reverse the Court of Appeals' opinion in its entirety and affirm the WCA's dismissal of Worker's claim. The doctrine of sovereign immunity dictates our analysis and prohibits the claim from proceeding against any party in the WCA.


{¶5} Worker injured her knee while working as a custodial porter at Isleta Casino. On the day of the accident, she filed a notice of accident form with her employer. In response to the notice of accident, Worker received correspondence from Tribal First informing her that her claim was denied. According to the letter, Worker's claim was denied because, "[p]er Isleta Resort & Casino['s] work injury program, claims are to be reported within 24 hours. Since you did not report your claim timely per Isleta Resort & [Casino's] work injury program, your claim is denied." After receiving the letter of denial, Worker filed a claim with the WCA. In response to this claim, Tribal First sent a letter to the WCA stating that because Isleta Casino is a tribal entity that retains sovereign immunity preventing it from being sued in state court, the WCA lacked jurisdiction over the matter.

{¶6} Despite the assertion of sovereign immunity, the WCA held a mediation conference in order to address Worker's claim. Following the mediation, the mediator presented her non-binding observations that (1) Hudson is the workers' compensation insurer for Isleta Casino, which was demonstrated by the filing of the Acord Certificate of Insurance with the WCA; (2) the Tribal First adjuster appeared telephonically and stated repeatedly that the WCA lacked jurisdiction to hear the case because of tribal sovereignty; (3) Tribal First had accepted premiums from the Pueblo but did not pay Worker's claim; and (4) Worker's counsel produced a copy of the Pueblo's tribal code, which does not mention workers' compensation as part of its jurisdiction.

{¶7} After reviewing the information from the mediator, the Director presented his recommended resolution, which provided in part: • Because of the agreement between the Pueblo and the State of New Mexico (the Compact), the WCA has jurisdiction over Worker's claim;

• Tribal First and Hudson were the insurers for Isleta Casino at the time of Worker's injury;

• Worker's claim is compensable under the WCA, as it occurred on the job and in the course of employment;

• The Pueblo waived its sovereign immunity by entering into the Compact with the State; and

• Tribal First is acting in bad faith and engaging in unfair claims practices.

In response, Isleta Casino and Tribal First filed a notice of rejection of recommended resolution and a motion to dismiss for lack of subject matter jurisdiction, citing the Pueblo's sovereign immunity.2

{¶8} In their motion to dismiss, Petitioners stated two reasons in support of the WCA's lack of jurisdiction. First, they contended that the WCA lacked jurisdiction because tribal sovereign immunity barred the claim. Second, they argued that the Pueblo had exclusive jurisdiction over workers' compensation claims made under its insurance policy. Following those arguments, Petitioners asserted that because the WCA lacked jurisdiction to adjudicate Worker's claim, it necessarily lacked jurisdiction to adjudicate bad faith claims against Hudson and Tribal First.

{¶9} In response to the motion to dismiss, Worker argued that the Compact contained an express and unequivocal waiver of sovereign immunity that permitted her to bring a claim in the WCA. In support of her argument, Worker cited to Section 4(B)(6) of the Compact, which provides that the Pueblo shall adopt laws requiring the Tribe, through its Gaming Enterprise or through a third-party entity, to provide to all employees of the Gaming Enterprise employment benefits, including, at a minimum, sick leave, life insurance, paid annual leave or paid time off and medical and dental insurance as well as providing unemployment insurance and workers' compensation insurance through participation in programs offering benefits at least as favorable as those provided by comparable State programs, and which programs shall afford the employees due process of law and shall include an effective means for an employee to appeal an adverse determination by the insurer to an impartial forum, such as (but not limited to) the Tribe's Tribal Court, which appeal shall be decided in a timely manner and in an administrative or judicial proceeding and as to which no defense of tribal sovereign immunity would be available; and provided that to fulfill this requirement the Tribe may elect to participate in the State's program upon execution of an appropriate agreement with the State[.]

NMSA 1978, § 11-13-app. (2015) (emphasis added). Worker asserted that even if the Pueblo did retain sovereign immunity, such status did not extend to its insurer. Additionally, she argued that because the Pueblo had no workers' compensation program in place, the state program became the default. Following Petitioners' reply, the WCA granted the motion to dismiss.

{¶10} The WCA provided three reasons for granting Petitioners' motion to dismiss. First, it found that within the Compact, the Pueblo did not expressly and unequivocally waive sovereign immunity, such that it could be sued in the WCA. Next, it determined that Worker did not have standing to challenge the terms of the Compact because the Compact is a contract between the Pueblo and the State. Finally, it concluded that Isleta Casino was an indispensable party to the claim, and thus, the claim could not proceed absent its joinder. The order of dismissal summarily disposed of Worker's claim against all parties.

{¶11} Following the dismissal, Worker filed a notice of appeal with the Court of Appeals. The Court of Appeals reversed the findings of the WCA and remanded the case back to the WCA for further proceedings. Mendoza, 2018-NMCA-038, ¶ 1. The Court of Appeals held that (1) the Compact between the Pueblo and the State of New Mexico set forth an express and unequivocal waiver of sovereign immunity as to workers' compensation claims; (2) even if the Compact did not contain an express waiver of sovereign immunity, "Worker ha[d] a right to pursue her workers' compensation claim directly against Hudson and [Tribal First]"; (3) even if the Pueblo had not waived sovereign immunity, it was not an indispensable party, and its absence did not prevent Worker's claim from proceeding; and (4) Worker was a third-party beneficiary to the Pueblo's workers' compensation policy. Mendoza v. Isleta Resort and Casino, 2018-NMCA-038, ¶¶ 29-30, 37, 44, 419 P.3d 1256.

{¶12} In our review of this case, we note the particular deficiencies in the record that, in part, direct our analysis. Not only does the record lack an insurance contract between Petitioners for us to consider, no evidence of a tribal workers' compensation program or agreement between the Pueblo and the State exists in the record. Here, the record was so inadequately developed that we are unable to...

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