Tasso v. Lucky Star Casino
| Citation | 512 P.3d 374 |
| Decision Date | 22 April 2022 |
| Docket Number | Case No. 119,576 |
| Parties | Robert TASSO, Petitioner, v. LUCKY STAR CASINO and the Workers' Compensation Commission, Respondents. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Kent Eldridge, Guinise Marshall Eldridge, KENT ELDRIDGE P.C., Oklahoma City, Oklahoma, for Petitioner
John A.L. Campbell, Roger M. Gassett, ASTON, MATHIS, CAMPBELL, PLLC, Tulsa, Oklahoma, and
Merrill C. Godfrey, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington, D.C., for Respondents
OPINION BY JANE P. WISEMAN, PRESIDING JUDGE
¶1 Robert Richard Tasso (Claimant) seeks review of an order of the Workers' Compensation Commission affirming a decision of an administrative law judge to dismiss his claim for lack of jurisdiction by the Commission. Claimant seeks review for the Commission's error in finding that it had no jurisdiction over the Employer, Lucky Star Casino, and its insurer, AMERIND Risk Management Corporation. This appeal raises issues of whether they are entitled to sovereign immunity and whether denial of substitution of the third-party administrator, Berkley Risk Administrator Company, LLC, for Employer or Insurer was proper. After review, we conclude the Commission did not err and affirm its decision.
FACTS AND PROCEDURAL BACKGROUND
¶2 Claimant injured his left knee on June 10, 2019, while employed by Lucky Star Casino. He filed a CC-Form-3 on July 10, 2019, alleging he sustained a left leg injury when he "[b]acked into bathroom stall causing the left knee to twist." In response, Employer filed a motion to dismiss asserting the WCC had no jurisdiction over Employer because Employer is owned by the Cheyenne and Arapaho Tribes and enjoys sovereign immunity, as does its insurer AMERIND. Employer also asserted that Oklahoma's workers' compensation laws do not apply to Claimant's injury.
¶3 Claimant filed a response in opposition to Employer's motion to dismiss asserting, "AMERIND states that its Tribal Workers' Compensation program is administered by the third-party administrator, Berkley Risk, which is publicly traded and a member company of W.R. Berkley Corporation, [an] A+ Fortune 500 holding company." (Citation to the record omitted.). Claimant asserted that, although he does not take issue with the assertion that the Cheyenne and Arapaho Tribes are entitled to sovereign immunity, he should be able to proceed with his claim against the third-party administrator.
¶4 Employer responded that it has sovereign immunity and its insurer, AMERIND, is a tribal enterprise also entitled to sovereign immunity. Employer noted that the third-party administrator, Berkley Risk, is not a party to this case, is not an insurance company, and has never undertaken an obligation to pay workers' compensation benefits. Employer also asserted that the Estoppel Act, discussed below, does not apply to Berkley Risk.
¶5 Claimant then filed a CC-Form-13 to add AMERIND and Berkley Risk as additional parties. Berkley filed a motion to dismiss asserting the WCC lacks personal jurisdiction over it because it does not have the required minimum contacts with Oklahoma. Berkley contended that Claimant does not have a legally cognizable claim against it because it is not his employer, is not an insurer, and did not accept any premiums for workers' compensation insurance. Berkley asserted the Estoppel Act does not apply because it is a third-party administrator.
¶6 After several responses and replies, and a hearing held on the motions to dismiss, the ALJ found that the essential facts are not in dispute. On or about June 10, 2019, Claimant injured his left knee "while he was acting in the course and scope of his employment" with Lucky Star Casino, a wholly owned enterprise of the Cheyenne and Arapaho Tribes. The Tribes previously insured against workers' compensation claims through an insurance policy it purchased from the Hudson Insurance Company, which has its principle place of business in New York but is incorporated in Delaware. In December 2018, the Tribes passed a resolution, authorizing the Tribes' governor to purchase a workers' compensation insurance policy from AMERIND to become effective January 1, 2019. The Resolution provides in pertinent part:
¶7 The ALJ found, "AMERIND is a federally chartered corporation formed by three federally recognized tribes under Section 17 of the Indian Reorganization Act of 1934 ( 25 USC § 477 )." The Tribes pay AMERIND an insurance premium based on a schedule of employees and their salaries. The ALJ further found:
The Tribes do not have their own workers' compensation ordinance. The AMERIND policy includes the AMERIND Risk Tribal Workers Compensation Benefit Endorsement ("the Endorsement"). According to the Endorsement, The Endorsement continues, "[t]his Endorsement replaces any and all rights and remedies an Employee or an Employee's Dependents may have against you for any injury under applicable federal, state, or tribal law." The Respondents contend the Tribes legislatively "adopted" the Endorsement as their own workers' compensation ordinance with the passage of the Resolution. However, there is nothing in the language of the Resolution to indicate any intention to perform a law-making function or to adopt the Endorsement as the Tribes' law. There is nothing in the language of the Resolution to indicate the Tribes accepted and/or approved the Endorsement as any type of binding tribal authority. Even if the Commission accepted the Respondents' argument, the Endorsement clearly states that it replaces any and all rights and remedies an employee may have against the Tribes for any injury under applicable federal, state or tribal law.
(Citations to the record omitted.)
¶8 The ALJ also found, "The Tribes do not have their own forum to adjudicate workers' compensation claims." Pursuant to the Endorsement, AMERIND "selects and appoints Hearing Examiners to resolve disputes arising under the application of the Endorsement" and establishes the Hearing Examiners' rates of pay and terms of office. The Endorsement also provides that a Hearing Examiner's decision is final and cannot be appealed.
¶9 The ALJ found that Berkley Risk is not a tribal entity but a third-party claims administrator for AMERIND who provides claims administration pursuant to the Endorsement. The ALJ concluded that Lucky Star Casino is a tribal enterprise entitled to sovereign immunity requiring the claim against it to be dismissed. The ALJ further found that AMERIND is a tribal enterprise and "a federally chartered corporation formed by the Red Lake Band of Chippewa Indians, the Confederated Salish and Kootenai Tribes of Flathead Reservation, and the Pueblo Santa Ana tribes pursuant to Section 17 of the Indian Reorganization Act of 1934. 25 U.S.C. § 5124 (formerly 25 U.S.C. § 477 )."
¶10 Claimant asserted "that because AMERIND collects premiums from the Tribes to provide its insurance coverage," it "cannot deny claimant is an employee subject to Oklahoma workers' compensation law" pursuant to 85A Supp. 2014 § 117. This is referred to as the Estoppel Act which states:
Every employer and insurance carrier who schedules any employee as a person employed by the employer for the purpose of paying or collecting insurance premiums on a workers' compensation insurance policy or who pays, receives or collects any premiums upon any insurance policy covering the liability of such employer under the workers' compensation law by reason of or upon the basis of the employment of any such employee shall be estopped to deny that such employee was employed by the employer.
¶11 Claimant also asserts Waltrip v. Osage Million Dollar Elm Casino , 2012 OK 65, 290 P.3d 741, is controlling. The ALJ noted that in Waltrip , the Supreme Court held, "Regardless of tribal sovereign immunity, Oklahoma courts could exercise jurisdiction over the insurance carrier and its third party administrator, neither of which were tribal enterprises." The ALJ concluded:
While the Waltrip decision is authoritative on several levels, it is distinguishable from the instant case. Whereas the insurance carrier in Waltrip was an insurance company created by the laws of the State of Delaware with is principal place of business in New York, AMERIND is a federally chartered corporation formed by three federally recognized Indian tribes under Section 17 of the Indian Reorganization Act of 1934 ( 25 USC § 477 ). Because it is a tribal enterprise, AMERIND is also entitled to sovereign immunity, and must be dismissed.
¶12 The ALJ concluded:
With regard to the third party administrator, which is not a tribal entity, Berkley Risk alleges it does not have sufficient contacts, or minimum contacts, with the State of Oklahoma to support general jurisdiction, because it has not purposefully availed itself of the privilege of doing business in Oklahoma to establish personal jurisdiction. However, from February 1990 through December 2007, Berkley Risk maintained an active Oklahoma third party administrator license. As such, Berkley Risk has minimum contacts with the state of Oklahoma.
¶13...
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