6. 7. 8. 9. 10. Misunderstandings and confusion about FTCA could be reduced by improving communications between self-determination contractors and Federal agencies. More consistent interpretation and application of policies and procedures within To the extent possible, a body of general information about claims filed under the Consideration could be given to the creation of a publicly available data base containing the same type of information as would be in the claims registry but, if necessary to maintain confidentiality, available without tribal or individual identifying information. The Federal agencies could consider issuing additional clarification on FTCA coverage of certain activities which have been the source of particular confusion for tribal contractors, such as employment-related torts. Our Conclusions After a number of years in which tribes and tribal organizations experienced difficulty in finding private liability carriers willing to insure them at all, let alone at reasonable prices, today's marketplace offers both opportunities and challenges. Some tribes have leverage to negotiate lower rates, and they have a choice of insurers. They often have more than one carrier vying for their business, as the wide variety of enterprises in which the tribes are engaged (not all of which are covered under the FTCA) are attractive sources of income to insurance companies. The grant of immunity from tort claims provided under the FTCA for P.L. 93-638 activities is extremely valuable to tribes and tribal organizations, particularly tribal health clinics. But extending FTCA immunity to self-determination contractors and compactors should have resulted in their paying less for private insurance. However, a lack of awareness of the applicability of the FTCA and/or a full understanding of its scope appear to have prevented some tribes from doing so. One of the most important steps that tribes can take to lower their private liability costs is to become better informed about the fundamentals of the FTCA and the kind of commercial insurance they need to supplement the immunity from tort claims that the FTCA provides self-determination contractors and compactors and their employees. Once they become more educated consumers, tribes can use that information to negotiate more effectively with brokers and insurance companies. Among the tribes in our study were some whose understanding of the FTCA enabled them to purchase cheaper private liability insurance that does not duplicate the coverage already provided under the FTCA. Knowledgeable brokers have worked closely with some tribes and tribal organizations to develop insurance products that meet those tribes' needs and significantly reduce their private insurance costs. The Federal government can help tribes and tribal organizations by providing more accessible information about the FTCA in a form that is simple and useful to laypersons. Tribes and tribal organizations can help each other by sharing information about their experiences in obtaining appropriate and reasonably priced insurance. Specific Comments on Title II of S. 2097 When we undertook the tribal liability insurance study, we quickly learned how little information was available about many critical issues. For instance, 1. How many tribes purchase commercial liability insurance? 2. Of the tribes that do, what types of insurance do they purchase? 3. 4. 5. 6. 7. What is the extent and limits of their coverage (i.e., is it "gap" or comprehensive coverage)? How much does it cost each year? What is the claims history under each policy? What types of claims have been brought against the tribe? How were the claims resolved (dismissed, settled, litigated?) How many tribes self-insure? What mechanism do they use to do this? How many tribes participate in a purchasing consortium or other group How many tribes decide not to purchase additional private liability insurance? What factors influence this decision? What happens when an individual is injured on the reservation? Does the tribe treat injuries of tribal members different from injuries of non-tribal individuals? If the tribe purchases commercial liability insurance, does the insurer take into consideration FTCA immunity in pricing the policy? If so, how is this done? If not, why not? Does the insurance company have the right to assert the tribe's sovereign immunity? If so, under what circumstances? Who makes the decision to raise sovereign immunity? To what extent is the tribe consulted if the insurer decides to settle a tort claim? How many claims against tribes or tribal organizations have been filed under the FTCA? How many have been determined by the Department of Justice to involve covered claims? How many have been rejected? What is the ultimate disposition of claims that are covered under the FTCA? How much in judgments or settlement fees has been paid on behalf of tribes? Is there a pattern in the cases? Of course, there were no answers to any of these questions. Nor did our 16 months of research yield any concrete statistics in these critical areas. Therefore, the study and report to Congress required under section 202 of the bill is critical. But collecting the information necessary for sound policymaking in this area is not necessarily as easy as it seems and drawing conclusions from the data collected may have limitations. Based on our experiences, I offer the following suggestions and observations: 1. Careful preparation is necessary to make the study as comprehensive and useful as possible. As a researcher, I am always tempted to ask for more information rather than less, because it is very difficult to anticipate what types of information might ultimately be useful in designing a program to provide supplemental tort liability coverage. However, the usefulness of any data is directly related to the reliability of the data. Our study used a variety of techniques to assure that the information we received was reliable: preliminary general initial interviews, follow-up telephone calls with additional questions, extensive on-site interviews, and review of actual insurance contracts. Talking to several people from each tribe, rather than just one, was also a check on the reliability of the information we received. However, using a combination of these techniques was costly, time-consuming and labor-intensive. In conducting the study required under section 202, the Secretary may not have the resources or the time to employ all of these methods. Typically, one would expect that the primary vehicle for collecting information about tribal liability insurance would be a requirement to fill out a form or provide details about tribal coverage when a tribe receives a "tribal priority allocation." The form used to collect the information should be simple but standardized. If additional detail is required, the instructions to the form should be clear about what must be supplied (e.g., a copy of the declarations page of the insurance policy or the policy itself). Determining what coverages tribes have and the limits of that coverage may be difficult. The language of insurance is arcane and confusing to most people and the tribal representative to whom falls the task of filling out the Secretary's form may be no more experienced in this area than anyone else. 2. Determining the adequacy of tribal private liability coverage is at best difficult; at worst, it may be impossible. Section 201 requires the Secretary to determine on a tribe by tribe basis whether the supplemental private liability insurance the tribe has is adequate. To the extent that a tribe has no supplemental coverage, the bill appears to require the Secretary to provide it. If the tribe has coverage, then the question of adequacy must be addressed. But to determine whether tribal supplemental coverage is adequate, one has to have a clear idea of the parameters of the coverage to be supplemented. However, because of the nature of the FTCA itself, determining what is and is not covered under the Act is not easy. Each claim that is filed under the FTCA is examined on a case-by-case basis and many of the factors that bear most significantly on coverage decisions are matters of state law. As we conducted our site visits, each of the tribal representatives complained about the lack of certainty over what claims were actually covered under the FTCA and urged us to recommend that the government provide more clarity. But after our months of research, even the three lawyers on the project agreed that the type of certainty the tribes sought was not possible. 3. The Secretary must work closely with representatives of the Department of Justice who administer FTCA coverage to develop guidelines for assessing the adequacy of private liability insurance. |