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Mendoza v. Isleta Resort and Casino

Court of Appeals of New Mexico

April 9, 2018

GLORIA MENDOZA, Worker-Appellant,
v.
ISLETA RESORT AND CASINO and HUDSON INSURANCE, Employer/Insurer-Appellees, and TRIBAL FIRST, Appellee, and STATE OF NEW MEXICO UNINSURED EMPLOYERS' FUND, Statutory Third Party.

          APPEAL FROM THE WORKERS' COMPENSATION ADMINISTRATION Leonard J. Padilla, Workers' Compensation Judge

          LeeAnn Ortiz Albuquerque, NM for Appellant

          Barnhouse Keegan Solimon & West LLP Christina S. West Los Ranchos de Albuquerque, NM for Appellees

          OPINION

          MICHAEL E. VIGIL, JUDGE.

         {¶1} Gloria Mendoza (Worker), an employee at Isleta Pueblo Resort and Casino (Isleta Casino), appeals orders of the Workers' Compensation Judge (WCJ) dismissing her workers' compensation complaint and denying her motion to reconsider a prior order to name the proper parties to the case. Worker contends that the WCJ erred in dismissing her complaint on grounds of tribal sovereign immunity based on an express and unequivocal waiver contained in the 2015 Indian Gaming Compact; that even assuming Isleta Casino enjoys sovereign immunity in this case, the defense does not extend to Isleta Casino's non-tribal entity insurer and third-party administrator; and that the WCJ erred in denying Worker's motion to reconsider its order granting leave to file a second amended workers' compensation complaint naming Isleta Casino's insurer and third-party administrator as parties to the case. For the reasons that follow, we reverse and remand for further proceedings.

         BACKGROUND

         A. The New Mexico Indian Gaming Compacts and Workers' Compensation

         {¶2} In 1988, the United States Congress enacted the Indian Gaming Regulatory Act (IGRA), Pub.L.No. 100-497, 102 Stat. 2467 (1988) (codified at 25 U.S.C. §§2701-2721 (2012)), which provides a statutory basis for Indian tribes to establish gaming enterprises in Indian Country conducted pursuant to state-tribal compacts. See 25 U.S.C. § 2702; 25 U.S.C. § 2710(d)(1), invalidated in part by Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 47 (1996).

         {¶3} In 1995 and pursuant to IGRA, the Governor of the State of New Mexico, Gary Johnson, unilaterally entered into state-tribal gaming compacts with certain tribes. See State ex rel. Clark v. Johnson, 1995-NMSC-048, ¶ 8, 120 N.M. 562, 904 P.2d 11. Concluding that it violated separation of powers under the New Mexico Constitution for Governor Johnson to enter into the state-tribal gaming compacts without legislative approval, our Supreme Court held in Johnson that the 1995 Indian Gaming Compacts were without legal effect. Id. ¶¶ 46-50.

         {¶4} Based on the decision in Johnson, Chapter 190, Section 1 of New Mexico laws of 1997 established the first legally effective state-tribal gaming compact in New Mexico. Section 4(B)(6) of the 1997 Indian Gaming Compact addressed workers' compensation for tribal gaming enterprise employees by stating that:

[T]he Tribe shall adopt laws... providing to all employees of a gaming establishment employment benefits, including, at a minimum, sick leave, life insurance, paid annual leave 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[.]

         {¶5} In 2001 a new and revised Indian Gaming Compact was adopted. S. J. Res. 3 7, 45th Leg., 1st Sess. (N.M. 2001). The 2001 Indian Gaming Compact included a version of Section 4(B)(6), which was identical to the 1997 Compact.

         {¶6} The Indian Gaming Compact was revised again in 2007. S.J. Res. 21, 48th Leg., 1st Sess. (N.M. 2007). Under the 2007 Indian Gaming Compact, Section 4(B)(6) was modified to add additional basic rights that tribal gaming enterprise employees must be afforded in the context of workers' compensation and how signatory tribes may elect to participate in the State of New Mexico's workers' compensation program. Section 4(B)(6) of the 2007 Indian Gaming Compact provided that:

[T]he Tribe shall adopt laws ... providing to all employees of a gaming establishment employment benefits, including, at a minimum, sick leave, life insurance, paid annual leave 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[.]

(Emphasis added.)

         {¶7} In 2015 the current version of the Indian Gaming Compact was adopted. S.J. Res. 19, 52nd Leg., 1st Sess. (N.M. 2015). With revisions emphasized below, the 2015 Indian Gaming Compact re-adopted in its entirety the 2007 amendment to Section 4(B)(6). Section 4(B)(6) of the 2015 Indian Gaming Compact provides:

[T]he Tribe 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[.]

         (Emphases added.) The Pueblo of Isleta has been a signatory to the 2015 Indian Gaming Compact since July 28, 2015. See Indian Gaming, 80 Fed. Reg. 44, 992-01 (July 28, 2015).

         B. Parties in Interest

         {¶8} Worker, the injured worker and complainant seeking work injury benefits from her employer in this case, is employed by and works as a custodial porter for Isleta Casino. Isleta Casino is a Class III tribal gaming enterprise located in the State of New Mexico that is wholly owned and operated by the Pueblo of Isleta. At the time of Worker's work injury, Isleta Casino maintained workers' compensation insurance issued by Hudson Insurance Company (Hudson), a Delaware corporation. Tribal First, which functioned as the third-party administrator of Isleta Casino's workers' compensation insurance policy at the time of Worker's injury, is a program administered by the California corporation, Alliant Specialty Insurance Services, Inc. Finally, First Nations Compensation Plan, was a company that provided Indian tribes with workers' compensation, coverage until 2009. In 2009, First Nations Compensation Plan ceased paying claims after being pulled into bankruptcy proceedings involving a related company whose principals were investigated for operating a "Ponzi scheme" and were convicted on charges of mail fraud.

         C. Worker's Work Injury and Claim for ...


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