VIEJAS BAND OF KUMEYAAY INDIANS TRIBAL CODE TORT LIABILITY ORDINANCE. Enacted Table of Contents

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1 VIEJAS BAND OF KUMEYAAY INDIANS TRIBAL CODE TORT LIABILITY ORDINANCE Enacted Table of Contents Section 1 General Provisions Purpose Exclusive Remedy Effective Date... 1 Section 2 Definitions Calendar Days Claim Claimant Claims Administrator Compact Compensable Injury Determination Gaming Facility Notice of Appeal Hearing Ordinance Review Board Tribal Council Tribal Dispute Process Viejas Band... 2 Section 3 Limited Waiver of Sovereign Immunity... 2 Section 4 Governing Law... 3 i

2 Section 5 Notice of Tribal Dispute Process... 3 Section 6 Claims Administrator Review Exhaustion of Tribal Dispute Process Filing of Claim Contents of Claim Investigation Claims Administrator Determination... 4 Section 7 Review Board Hearing Review Board Hearing Request Disclosure Interpreter Review Board Ruling... 5 Section 8 Arbitration Binding Arbitration Arbitration Procedures Optional Arbitration Appeal Procedure... 6 Section 9 Enforcement... 6 Section 10 Amendments... 6 ii

3 VIEJAS BAND OF KUMEYAAY INDIANS TRIBAL CODE TORT LIABILITY ORDINANCE Enacted Section 1 General Provisions 1.01 Purpose. Pursuant to Section 10.2(d) of the Compact, the Viejas Band hereby sets forth the procedures by which a Claimant may seek compensation for Compensable Injuries. The procedures and proceedings set forth in this Ordinance shall be the exclusive legal remedy for any Claim arising out of, connected with, or relating to, the operation of the Gaming Facility Exclusive Remedy. The procedures set forth in this Ordinance shall be the legal exclusive remedy for any Claim arising out of, connected with, or relating to the operation of the Gaming Facility Effective Date. This Ordinance shall take effect immediately and shall repeal, supersede and replace any and all other ordinances, laws, resolutions or policies enacted by the Viejas Band regarding Claims for Compensable Injuries. Section 2 Definitions 2.01 Calendar Days means every day of the year inclusive of weekdays, weekends, and holidays Claim means a written document, together with such supporting information as a Claimant may wish to provide, alleging a Compensable Injury to person or property that is prepared by Claimant and timely filed with the Claims Administrator pursuant to the procedure and requirements set forth in Section 6 of this Ordinance Claimant means an individual who submits a Claim to the Claims Administrator Claims Administrator means the Viejas Risk Management Department, or such other designee of the Viejas Band Compact means the Tribal-State Class III Gaming Compact between the State of California and the Viejas Band, including any amendments thereto Compensable Injury means a Claim: (A) for money damages for bodily injury, property damage, or personal injury arising out of, connected with, or relating to the operation of 1

4 the Gaming Facility; (B) that is covered by the Viejas Band s insurance policy for the Gaming Facility, and within the coverage limit of $10 million; and (C) that does not seek punitive damages or attorney s fees Determination means the written resolution of a Claim by the Claims Administrator Gaming Facility means Viejas Casino, including any building in which Class III gaming activities or gaming operations occur, or in which the business records, receipts, or other funds of the gaming operation are maintained (but excluding offsite facilities primarily dedicated to storage of those records, and financial institutions), and all rooms, buildings, and areas, including parking lots and walkways, the principal purpose of which is to serve the activities of the gaming operation Notice of Appeal Hearing means a written notice from the Claims Administrator to notify a Claimant of the hearing before the Review Board Ordinance means this Ordinance setting forth the procedures by which a Claimant may seek compensation for Compensable Injuries Review Board means a board comprised of 4 individuals appointed by the Tribal Council to resolve disputes pursuant to Section 7 of this Ordinance Tribal Council means the duly elected governing body of the Viejas Band Tribal Dispute Process means the process set forth in Sections 6 and Viejas Band means the Capitan Grande Band of Diegueno Mission Indians of California: Viejas (Baron Long) Group of Capitan Grande Band of Mission Indians of the Viejas Reservation, California. Section 3 Limited Waiver of Sovereign Immunity 3.01 The Viejas Band is a federally recognized Indian tribe that retains and has not waived its sovereign immunity from unconsented suit and legal process, except to the extent specifically defined in this section. This limited waiver shall create no rights in or does not apply to any third party or to any legal process that does not comply with the terms and conditions of this Ordinance. (A) (B) The Viejas Band waives sovereign immunity from unconsented suit in an arbitration proceeding conducted in accordance with Section 8 of this Ordinance. The Viejas Band makes an express limited waiver of its sovereign immunity and such limited waiver: 2

5 (I) (II) Shall not apply to any Claim that seeks recovery for: (a) damages not covered by the insurance policy required by the Compact; (b) damages that exceed $10,000,000; or (c) punitive damages or attorney s fees. Shall apply to an action in a court of competent jurisdiction to: (a) compel arbitration; (b) confirm, correct, or vacate the arbitration award rendered; or (c) enforce or execute a judgment based upon an arbitration award. (C) Nothing in this Ordinance shall be construed as a waiver of sovereign immunity to allow any court to adjudicate the merits of a Claim. Section 4 Governing Law 4.01 All Claims shall be resolved pursuant to California tort law as limited by the Compact and the terms and conditions of this Ordinance. Section 5 Notice of Tribal Dispute Process 5.01 The Viejas Band shall provide written notice to each potential Claimant known to it of its Tribal Dispute Process, including the limitations period within which a Claimant must file his/her Claim with the Claims Administrator. Such notice shall be served personally upon Claimant or by certified mail with return receipt request. The notice shall contain the following language: "Please be advised that you must bring any Claim for compensation related to any alleged injury at or in connection with Viejas Casino within 180 Calendar Days of receipt of this written notice by submitting a written document, together with any supporting documentation, to the Claims Administrator at the following address by certified mail or any other form of delivery by which confirmation of receipt may be obtained: Viejas Claims Administrator, 5000 Willows Road, Alpine, CA 91901; provided however that said Claim must also be filed within the applicable statute of limitations under California law. Any Claim must first be resolved by the Tribal Dispute Process, and if dissatisfied with the resolution, you may request binding arbitration within 30 Calendar Days of such resolution or 180 Calendar Days from the date when a Claim is filed, whichever is later." Section 6 Claims Administrator Review 6.01 Exhaustion of Tribal Dispute Process. Claimant must first exhaust the Viejas Band s Tribal Dispute Process for resolving a Claim as provided in Sections 6 and 7. Claimant s failure to do so or to strictly comply with any aspect of the Tribal Dispute Process shall result in Claimant s loss of any right to pursue a Claim against the Viejas Band by arbitration or any other legal action Filing of Claim. Claimant shall file a Claim in writing with the Claims Administrator within 180 Calendar Days of receipt of written notice pursuant to Section 5. Claimant must present all material facts relating to the alleged incident or injury and deliver to the 3

6 following address by certified mail or any other form of delivery by which confirmation of receipt may be obtained: Viejas Claims Administrator, 5000 Willows Road, Alpine, CA 91901; provided however that said Claim must also be filed within the applicable statute of limitations under California law. Therefore, any Claim must be filed within 180 Calendar Days of receipt of written notice pursuant to Section 5 or within the applicable statute of limitations under California law, whichever first occurs. The failure to timely file a Claim shall cause the loss of any right to arbitrate the Claim, which is the exclusive legal remedy for any Claim for a Compensable Injury arising out of, connected with, or relating to the operation of the Gaming Facility Contents of Claim. The Claim must include the following information and failure of Claimant to provide said information shall be grounds for denying the Claim: (A) (B) (C) (D) (E) (F) (G) The name, mailing address and telephone number of Claimant and Claimant's legal representative, if any; The date, location, and detailed account of the alleged incident or occurrence that gave rise to the Claim; The identity or description of all persons known to Claimant or believed by Claimant to be involved in the incident or occurrence that gave rise to the Claim; The identity or description of all persons known to Claimant or believed by Claimant to be witnesses to the incident or occurrence that gave rise to the Claim; A description of the nature of the alleged damage or injury suffered and the compensation requested as of the date of the presentation of the Claim; Copies of any supporting documentation in the possession or control of Claimant or his/her legal representative relating to the Claim, including but not limited to medical records and reports, investigative reports, witness statements, contracts, photographs, and police and accident reports; and The signature of Claimant or his/her legal representative under penalty of perjury attesting to the veracity of all statements made therein Investigation. The Claims Administrator may investigate the Claim, and may in its discretion, request additional information from Claimant. In addition, the Claims Administrator may request Claimant and witnesses to appear before it and to give testimony under oath given by a duly authorized notary public as to facts underlying the Claim. The failure of Claimant to provide additional information requested by the Claims Administrator or failure of Claimant to appear before the Claims Administrator and to give testimony when requested shall be grounds for denying the Claim Claims Administrator Determination. The Claims Administrator shall issue a Determination within 80 Calendar Days of receipt of the Claim unless such time period is 4

7 extended by Claimant and the Claims Administrator by mutual agreement. Any Determination will be sent to Claimant at the address provided in the Claim. If the Claim is denied in whole or in part, the Claims Administrator will include in the Determination notice to Claimant of the right to request a Review Board Hearing under Section 7 within 15 Calendar Days. Section 7 Review Board Hearing 7.01 Review Board Hearing Request. Claimant may appeal a Determination by submitting a written request along with a $50 filing fee made payable to Viejas Casino. The written appeal request must be made within 15 Calendar Days following service of the Determination and be delivered to the following address by certified mail or any other form of delivery by which confirmation of receipt may be obtained: Viejas Claims Administrator, 5000 Willows Road, Alpine, CA An appeal hearing shall be set no later than 45 Calendar Days from the appeal request. The Claims Administrator shall serve Claimant the Notice of Appeal Hearing within 25 Calendar Days from the date of receipt of the appeal request Disclosure. Claimant may review the following information by requesting such review in writing no later than 10 Calendar Days following service of the Notice of Appeal Hearing. Claimant must review such information in person and in the presence of a Claims Administrator s representative. (A) (B) (C) (D) (E) Viejas Band incident report; Supplemental reports by Viejas Security Officers, if any; Written statements contained in the Claim file from Viejas Band employees who witnessed the incident or other witnesses, if any; Surveillance video, if available; and Photographs taken of alleged injury and/or place of alleged injury, if any Interpreter. English is the official language used to conduct Review Board Appeal hearings. If Claimant does not speak or understand English, Claimant may bring a court certified interpreter to the hearing at Claimant s own expense Review Board Ruling. The Review Board shall serve Claimant with its ruling in writing within 10 Calendar Days of said Review Board hearing to the address provided in the Claim. Section 8 Arbitration 8.01 Binding Arbitration. Claimant may request, in writing, to arbitrate after the Review Board ruling under Section 7. Claimant shall deliver the written arbitration request to the 5

8 following address by certified mail or any other form of delivery by which confirmation of receipt may be obtained: Viejas Claims Administrator, 5000 Willows Road, Alpine, CA Claimant must request arbitration within 30 Calendar Days of the Review Board ruling or 180 Calendar Days from the date when the Claim is filed, whichever is later Arbitration Procedures. Arbitration shall be conducted in San Diego County, before a single arbitrator, who shall be a retired judge, and pursuant to the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the request was filed. The parties may conduct discovery pursuant to Section of the California Code of Civil Procedure or amendments thereto. The initial cost for the arbitration shall be paid by the Viejas Band, but the arbitrator may award costs to the prevailing party. Any costs awarded by the arbitrator shall not exceed those allowable in a lawsuit in California Superior Court Optional Arbitration Appeal Procedure. Any party that is dissatisfied with the award of the arbitrator may appeal the award through the JAMS Optional Arbitration Appeal Procedure in effect at the time the request was filed. The party appealing the award shall pay all costs for the arbitration appeal. Section 9 Enforcement 9.01 Either party to the arbitration may seek enforcement of any of the following in a court of competent jurisdiction: (A) (B) (C) To compel a party s obligation to arbitrate; To confirm, correct, modify, or vacate the arbitrator s award; or To enforce or execute a judgment based upon the arbitrator s award. Section 10 Amendments All provisions of this Ordinance are subject to amendment by the Tribal Council. 6

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