been few cases, but the types of cases seen by the OGC tend to involve the denial of FTCA coverage because the activities fell into two categories: (1) the cases involved conduct outside the scope of employment, or (2) the cases actually were employment disputes not torts. For example, several of the cases referred to the OGC arose from breach of contract issues, employment discrimination, or wrongful discharge. Center for Health Policy Research Attachment 7 A Sample of Liability Coverage Carried by Tribes and Tribal Organizations 'This amount includes liability coverage on the tribe's casino. Attachment 8 P.L. 93-638 and Non-P.L. 93-638 Tribal Enterprises Some examples of enterprises for which tribes seek insurance coverage include casinos, gas & oil (mineral rights), golf courses, restaurants, shopping plazas with grocery and hardware stores, restaurant, recreational vehicle parks, strip malls, crafts/pottery, fisheries, gas wholesalers, museums, cultural centers, among others. Below, broken down by tribe, is a table presenting an overview of P.L. 93-638 and non-P.L. 93-638 enterprises. Tribe Α B C D E F Typical Tribal Enterprises Construction, agriculture, utilities, hospitality (restaurants, etc.). Nursing home, housing authority, construction company, defense industry, environmental clean-up Clinic, Head Start programs, law enforcement center, tribal school, recreation centers, library, food distribution center, alcohol and other drugs (AODA) clinic, auto service center, casino, bingo hall Game wardens, police officers, communications (newspaper), Head Start and daycare, health clinic, golf course and restaurant, casino Casino, construction, cattle farm, promotions (printing), apple orchard, partnerships with an electronics manufacturer and a digital communications company; future prospects include lumber and bison Hospital, mental health facility, crisis respite center, 5 beds in a residential drug treatment center for children under 12, supportive living facility, 20 bed inpatient substance abuse facility H Bingo, casino, liquor store, utilities, cablevision, marina, convenience store I Clinic, wood box factory, casino, law enforcement, education programs, mental health, forestry, child welfare, WIC J Clinic, law enforcement, education programs, mental health, forestry, child welfare Center for Health Policy Research Attachment 9 How a Claim is Handled under the FTCA Administrative and Judicial FTCA Claims Process Administrative Stage Tort claims under the FTCA must be presented in writing to the appropriate Federal agency (DHHS or DOI) within two years after the claim arises.' If the claim is not filed during this specified two-year period, the claim can never be filed. Once a tort claim has been timely filed, in the administrative phase of the claims process, the claim may be denied, the claim may remain open or undecided, or the claim may be settled. Once a claim has been filed, the Federal agency then has six months in which to make a decision on the claim. During this six-month time period, unless the filer of the claim (the claimant) receives a final denial letter from the Federal agency, the claimant cannot file suit in Federal court. Once a final denial is received, the claimant has only six months from the certified or registered date on the denial letter to file suit in a Federal district court. If the Federal agency does not deny the claim in writing, and the claim has been undecided for more than six months, the claimant may consider the claim denied and file suit in a Federal district court. The claimant also has the option to request that the final denial be reviewed again, as long as the request to reconsider the claim is presented to the Federal agency within six months of the postmark date of the denial letter. Only one request for reconsideration is allowed. If a request for reconsideration is filed within the required time period, the Federal agency has six months to reconsider the claim and make a final determination. During the six-month reconsideration 1 Refer to 28 U.S.C. 2401 for exceptions. period, the claimant may not file suit. The third possible outcome for a claim is administrative settlement. If the claim is settled for less than $25,000, the Federal agency with which the claim was filed has the authority to approve the settlement. If the claim is to be settled for more than $25,000, the Department of Justice must approve the claim. Judicial Stage If a claimant decides to file suit in Federal district court either after the denial of a claim or when no determination is made on a claim within the 6-month period, the Department of Justice will determine whether the claim is within the scope of FTCA coverage. If so, the trial will go forward. The Department of Justice will assign an attorney to defend the suit unless there is duplicative private insurance coverage. If that is the case, the DOJ will require the private insurance carrier to defend the suit under the direction of a U.S. Attorney. If there is no duplicative private insurance coverage, the U.S. Attorney will defend the action. The lawsuit will either be settled, dismissed before a judgment is rendered (for example, if the claim was not filed properly), or a trial without a jury will be held which will result in a judgment on the merits of the claim. If the plaintiff is successful, the next step in this process is to determine who will pay the judgment. Normally, the U.S. government will pay the judgment. If there is duplicative private insurance coverage, however, the insurance company will pay up to the limits of the insurance policy and the Federal judgment fund will cover the remaining amount. If the insurance company refuses to pay, the U.S. government will pay the judgment and file suit against the insurance company for indemnification and/or subrogation. |