Tuesday, September 14, 2004
Your client was injured in the Seneca Niagara Casino. What do you do? Is there a claims procedure? Can you sue it? Where do you sue it? One of the invisible consequences of Governor Pataki's deal with the Seneca is that the answers to questions like these are harder to find than they should be-- and, I suspect, the process is a good deal less transparent than it should be. For starters, you can have a look at Appendix H of the Nation-State Gaming Compact Between the Seneca Nation of Indians and the State of New York. Do it before a year has run on your client's claim. I am particularly intrigued by the fact that this document is marked "Privileged and Confidential". What the hell is that about? Look, I understand about sovereignty (and can even pronounce it), but the New York State Executive Law provision pertaining to the establishment of casinos (Executive Law Sec. 12) states that the Nation is to provide "assurances that the Nation has an adequate civil recovery system which guarantees fundamental due process to visitors and guests of the facility and related facilities; and (iii) assurances that the Nation will maintain during the term of the compact sufficient liability insurance to assure that visitors and guests will be compensated for their injuries." I don't see how an Appendix to a confidential document accomplishes this, but I guess it's not so very confidential if it's on the internet. It's an interesting document throughout. "Damages" for example mean only medical expenses, lost earnings, "property lost and other economic harms" that are a direct consequence of an injury caused by the fault of the Nation. "'Damages' do not include non-economic injury." That lets pain and suffering out-- and I don't see anything about wrongful death in there, either. There is a $5 million dollar cap. With rules like those-- and control over the forum-- maintiaining adequate liability insurance shouldn't be too expensive.