Negligence Suit against Doctor Defendant Dismissed under Public Law 15-22

The CNMI Public Employee Legal Defense and Indemnification Act (PELDIA) was repealed by Public Law 15-22, which mandates that Commonwealth employees who obtain a certification from the Attorney General that they were acting within the scope of their employment be dismissed from negligence lawsuits. Public Law 15-22, enacted on July 28, 2006, is based on the Federal Tort Claims Act. In this personal injury case, the court dismissed Plaintiff’s negligence claim against a doctor Defendant. Owens v. Saccomanno, Civ. Action No. 04-0288, March 21, 2007 (Wiseman, J.). As a threshold matter, the court held that it could adopt the review procedure employed by federal courts and find that Attorney General certifications are subject to review by the trial court. The court cited to 9^th Circuit cases which provide that: 1. the trial court should apply respondeat superior when reviewing a certification; 2. the initial burden of proof is on the party seeking review of the certification; 3. the certification is prima facie evidence that the employee was acting within the scope of his employment; and 4. the trial court may hold a hearing to resolve factual hearing as long as there is a disputed issue of material fact. Plaintiff argued that the doctor should not have received a certification because he was an “independent contractor.” The CNMI Supreme Court has spoken on the factors to be considered in determining whether a person serves as an employee or independent contractor. Castro v. Hotel Nikko Saipan, Inc., 4 N.M.I. 268, 273 (1995). Judge Wiseman further identified factors which relate to medical professionals enumerated by federal courts. These factors are whether: 1. the professional accepted an assignment as an employee or a contractor; 2. the hired professional was required to provide personal liability coverage; 3. the professional provided his own equipment; and 4. the Government supervised the professional daily. Because the employment contract specifically characterized defendant’s position as “employee-employer,” the Court gave little weight to the fact that the contract was short in duration. In addition although the contract did not provide all benefits usually covered for Commonwealth employees, those omissions did not conclusively indicate that defendant was not an employee. Finally, plaintiff did not establish an issue of fact regarding the supervision of defendant. Looking to whether defendant acted within the scope of his employment, the Court found that the conduct was not so “unusual or startling” that it would be unforeseeable to an employer.