The news reports all say that the hotel is suing hundreds of the victims who were shot,( and in the case of the victims who died, the hotel is suing the surviving families.)
Huh?
What are they suing for?
The hotel says that the reason for the suit is to pre-emptively dismiss the suits which will soon be filed by the victims.
I need a legal beagle to fight my ignorance: how do you sue somebody who hasn’t done anything to you and hasn’t (yet) asked you to pay?
I can understand why the victims (and especially their lawyers ) want to sue the hotel: to get paid.
I can understand why the hotel wants to defend itself.
But for these two things to happen, it seems logical that the order would be reversed:
First-- the victims file a suit against the hotel, listing claims for monetary reimbursement, and THEN the hotel files its defense, asking to dismiss the suit.
But it seems that the hotel has filed the first suit, (asking to be resolved of responsibility)–before it has been accused of anything.
It’s a reasonable claim, and the court will have to decide.
But to my non-legal mind, it seems like the hotel is jumping the gun.
What are they demanding from the victims in this suit?
It seems like they are demanding that the government do something, not the victims.
The hotel wants the government to recognize the attack as an act of terrorism, not a criminal act; this then requires the government to apply the post-September11th anti-terrorism act( which keeps the hotel free from blame).
What specific charge is the hotel making against the victims, for which the victims must appear in court to defend themselves?
IANAL but this may be a pre-emptive tactic. The hotel is sending the message “Yes, you can file a lawsuit against us. But we’re prepared to drag it out through the legal system for decades and make you pay a fortune in legal fees. So in the end, you’ll get practically nothing and you might even lose money. You should give up now and not bother suing us in the first place.”
The trouble with that is they are requiring persons who have no plans of suing to get a lawyer to defend themselves. And what are they defending themselves against. They aren’t going to make a determination that the attack was terrorism or not.
Suppose a defendant chooses not to defend himself but others do. Does he lose automatically? If other defendants fight and win, does that mean it was a terrorist act as far as the first was concerned, but is not for those who fought? That makes little sense.
If there is an earthquake which ruptures a gas line and my house burns down, can the insurance company sue me to claim I have no valid claim because it was a non-covered earthquake rather than a covered fire? Yes they could claim this after I tried to collect, but can they sue me to prevent me from even trying to collect?
Yes, I realize that the hotel is looking for any practical excuse which will scare the victims into silence. But I’m asking about the legal excuse.
A lawsuit usually begins when you receive a written statement from someone saying, say, “You have to come to court, because I’m suing you for letting your dog bite me, and I want money.”
In this lawsuit, what does the statement from the hotel to the victims say?
(I’m imagining: “You have to come to court because we’re suing you for getting shot, and ha-ha- it sucks to be you”?)
It’s more of a play to get their insurance to kick in for coverage of terrorism. It’s complicated, but that’s the way I’m hearing it from people in Vegas. CNN link.
Two preliminary comments: (1) according to your cite, the lawsuit names those victims who have threatened to sue (or sued and voluntarily dismissed their case) and (2) I have no opinion on the merits of the actual non-liability argument.
An action for declaratory judgment asks a court to determine the rights of respective parties when there is an open dispute, but no pending litigation between them. For example, you and I enter into a contract. And, later, we disagree over one of the terms. I say that it requires you to do “X” and if you fail to do it, you’re in breach. You say that the contract does not require “X.” You have a few options: you can do “X”, you can not do “X” and dare me to sue for breach (and run the risk of losing), or you can bring an action for declaratory judgment and ask the court to find that the contract does not require “x”. They pop up in patent cases (I accuse you of infringing my patent) and seem to be rather common in disputes over insurance coverage.
It’s pretty close to the “no advisory opinion” line, but it allow someone who is threatened with a legal claim to resolve it. Businesses like that kind of certainty. (I also assume that it would be cheaper to join everyone to one suit to resolve a dispositive issue).
They’re not asking anything from the victims, really. They’re asking the court to rule that they are not liable if the victims were to sue them (and, again, this is presumably limited to victims who have actually threatened to sue). They have to name the victims as parties for collateral estoppel reasons.
Endorsed completely. Great post. Except I think it’s called “issue preclusion” now, in the newfangled legal jargon. And res judicata is claim preclusion.
A declaratory judgment action is a perfectly reasonable course to take when you think you might be sued and you just want a court to resolve the issues in your favor without having to wait.
So the hotel is not suing everybody, and isn’t forcing the victims to defend themselves in court in advance, the hotel is simply filing a document asking the court to predetermine if the victims can sue?
That’s … that’s … exactly what no television news source has said, ever, at all. Where would we be without the SDMB?
No, what they are saying is “You’re making a lot of noises about suing me, so it’s time to put up or shut up. I’m not going to wait for you to choose the time and place. I’m asking this court to say I don’t owe you anything. This is your chance to prove I’m wrong.”
The hotel is not seeking money from the victims, but it is trying to cut off the victims’ potential right to recovery. If the victims don’t engage counsel and respond now, they may lose their opportunity to sue in the future.
Substantively, it seems that a law was put in place after 2001 that – in the hotel’s interpretation – limits an entity’s liability for acts of terrorism, if that entity relied upon a company that was certified by the Department of Homeland Security as meeting certain anti-terror criteria. Here, the hotel hired a security company for the concert that was DHS-certified, so the hotel says that it is insulated from suit. This law also gives the hotel an avenue into federal court, whereas the victims will tend to want to sue in state court, which by and large has a more plaintiff-friendly reputation. As I understand it, there is very little case law interpreting this restriction, and there may be aspects of this case that make the restriction inapplicable here.
They are suing everyone that has indicated they plan to sue.
But they’re suing not for monetary damages, but for a simple declaratory judgement. It’s a bit more than filing a document, because the victims are party to the action: they need to have the right to get in front of this court and explain why they should be able to sue.
But yeah, the media reporting has been as favorable for the non-hotel side as its possible to get.
I’m pretty ignorant of the legal system, Bricker, just knowing what you do of the case, in your legal opinion do you think the victims have standing to sue and collect from the hotel or are they entitled to nothing?
I have a possibly tangentially related question: do they have the grounds to state this was terrorism and therefore remove the grounds for a suit? On the surface, it seems like a reach (for lack of a better word) to avoid culpability. Maybe hotels shouldn’t have responsibility for whether their guests bring in cases of weapons, but that seems like an entirely different argument. Yes? No?
If I may … MGM seems to be claiming they performed due diligence in this matter, as defined by Congress … there’s only so much a hotel can do without being overly invasive … do we require every hotel to search their guests’ luggage or can we cut the hotel slack if the weapons are cleverly hidden? … it appears this case will attempt to answer this question …
Whether or not this was an act of terrorism in one question.
If it was, then the action by MGM makes sense to me since it would seem the law was intended to make sure hotels (and the like) used security consultants that met specific minimum standards. They did and so should be afforded the protection this decision provides.
If it wasn’t terrorism, then MGM has to prove the security they provided was reasonable. Is it reasonable for a hotel to inspect the luggage of every guest? If not every guest, should they be allowed to profile guests? If they can’t profile guests, then are we going to treat hotels like airports? You can’t bring your own water bottles? No toothpaste over 100 grams unless you buy it at the hotel? Also, if the incident is not considered terrorism, then a lot of the convictions, let alone arrests, on terrorism charges (for issues such as bomb threats, etc…) would be able to be challenged. It seems to me to argue this was not terrorism creates a bigger problem than saying it was.
I think MGM has this one. Personally, I don’t think that they should be held liable unless it can be shown that they did not follow their procedures for this particular guest, regardless of how deep their pockets are. But, as they are arguing, they followed the advice that consultants told them was sufficient; if that advice was deficient, the Feds should be held responsible, not MGM.
) want to sue the hotel: to get paid.