--- Am. Tribal Law ----, 2017 WL 4404119 (Mohegan Gaming Trial Ct.)
Mohegan Gaming Disputes Trial Court.
Bernadina Contereras
Mohegan Tribal Gaming Authority, et al.
MAY 8, 2017

Attorneys and Law Firms
Soline M. Oslena, Esq., for Plaintiff
Robert A. Rhodes, Esq. for Defendant


FULL TEXT, Manfredi, J.

The complaint in this matter alleges that the Plaintiff was injured on November 25, 2015 while she was attempting to exit an employee shuttle bus being operated by the Defendant Nathan McCaskill. It further alleges that McCaskill was an employee of the Mohegan Tribal Gaming Authority (hereafter “MTGA”) at the time of the incident and was operating the bus with the knowledge and consent of the MTGA. It is also alleged that the Plaintiff was an employee of the MTGA at the time of the incident and was in the course of her employment at that time.

Both of the Defendants have moved to dismiss the complaint as to Nathan McCaskill claiming that he is entitled to sovereign immunity.



“A motion to dismiss...properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court... [T] he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.” (Internal quotation marks omitted) Bacon Const. Co. v. Dept. of Public Works, 294 Conn. 695, 706 (2010).


“When a ... court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light... In this regard, a court must take these facts alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader... The motion to dismiss... admits all facts which are well pleaded, invokes the existing record, and must be decided upon that alone.” Gold v. Rowland, 296 Conn. 186, 201(2010).


The issue before the Court then is whether the Defendant McCaskill, under the facts as alleged in the complaint is entitled to the defense of sovereign immunity requiring the dismissal of the complaint as to him.

Defendants claim McCaskill is entitled to sovereign immunity because he is an employee of MTGA and cite several Connecticut and Mohegan cases to support that position. This Court is in agreement that in the cases cited the doctrine of sovereign immunity extended to employees and precluded actions against them in their individual capacities. Additionally, Defendants rely upon MTC § 3-131which states in part:
“In any civil action where relief is sought under this Article, its officers or employees, or which alleges any breach of legal duty thereby, the named defendant shall be The Mohegan Tribe or the Mohegan Tribal Gaming Authority as specified in the governing contract or agreement.”
Defendants do not contend and it is not in dispute that there has been a waiver of sovereign immunity as to MTGA for tort claims and that MTGA is a proper party to this action. MTC § 3-250. The only question is whether McCaskill is also a proper defendant under the circumstances of this case. What sets this case apart from those cited by the Defendants is that McCaskill is a fellow employee of the Plaintiff as alleged in the complaint.

MTC § 4 -210 states that:
“If an employee or, in the case of his death, his dependent, has a right to benefits or compensation under this Article on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee, unless such wrong was willful or malicious or the action is based on the fellow employee’s negligence in the operation of a motor vehicle. All claims made under this section shall only be adjudicated in the Mohegan Court.”
Defendants claim that § 3-131 requires that The Mohegan Tribe or the Mohegan Tribal Gaming Authority be the only named defendant in civil actions where relief is sought against the tribe, its officers or employees requires that the action be stricken.

The reconciliation of these two sections of the Mohegan Code and the relationship of each to the doctrine of sovereign immunity was recently decided by this Court in connection with a Motion to Strike in the matter of Cherisme v. Ganns, Docket Number: GDTC-T-10-124-FAM.

There this court stated:

“It is a basic tenet of statutory construction that statutes should be construed where possible, so as to create a rational, coherent and consistent body of law.” Russo v. City of Waterbury, 304 Conn. 710, (Conn. 2012).

“In the interpretation of statutes, the legislative will is the all-important or controlling factor. Indeed, it is frequently stated in effect that the intention of the legislature constitutes the law. Accordingly, the primary rule of construction of statutes is to ascertain and declare the intention of the legislature, and to carry such intention into effect to the fullest degree.” 73 Am. Jur. 2d, Statutes, § 145.

Although this court has recently ruled in the matter of Rizzo v. MTGA that a suit brought against an employee driver should be dismissed upon the principle of sovereign immunity pursuant to MTC § 3-131, that case is readily distinguishable on the facts. There, a third-party non-employee was the plaintiff while in this case the Plaintiff is an employee clearly covered by the provisions of MTC § 4-210. MTC § 4-210 unmistakably permits an employee to sue a fellow employee when “the action is based on the fellow employee’s negligence in the operation of a motor vehicle.” It is evident that the language of this ordinance indicates a clear intent on the part of the tribe to permit one employee to sue another when the suit arises out of the negligent operation of a motor vehicle. The language of the statute is almost identical to that contained in the Connecticut Gen. Statutes Workers Compensation statutes which permits suits against fellow employees in these circumstances.

Although MTC § 3-131 seems to require that the authority be the named defendant this Court holds that in circumstances such as these the proper defendant is the fellow employee. Therefore, the Defendant’s Motion to Strike is denied.”

Likewise, here the action is based upon a fellow employee’s negligence in the operation of a motor vehicle and the action against McCaskill is clearly permitted pursuant to the language of MTC § 4-210.

Additionally, the US Supreme Court appears to have resolved this issue in Lewis, Et Al. v. Clarke, 581 U.S. –––– (2017) [April 25, 2017] where it held that a tribal employee under circumstances similar to those found here is not covered by the doctrine of sovereign immunity. The fact that the incident occurred on the reservation does not change the underlying principle that this is not a claim against the defendant’s “official office.”

The Motion to Dismiss is denied.

All Citations
--- Am. Tribal Law ----, 2017 WL 4404119