“I wish to thank the Appellate Division of the High Court of American Samoa for rendering its decision in favor of ASG. We are pleased the Court has agreed with our position,” said Governor Togiola. “This was a very important court case for ASG and we are relieved that our taxpayers will no longer be burdened with the payment of $6.6 million to an insurance company.”

Governor Togiola also expressed his gratitude to Attorney General Fepulea’i Arthur Ripley Jr., Deputy Attorney General Jennifer Augspurger, Special Counsel Richard Bartmon, the Assistant Attorneys General and staff for their hard work and dedication to the case.

 

“I would like to commend the effort put forth by the whole team in developing the legal arguments that resulted in this decision. It is greatly appreciated,” said Governor Togiola. “We’re very grateful with this outcome and I hope that we can now focus our attention on other pressing governmental concerns.”

 

 

In a unanimous decision on January, 25, 2010, the Appellate Division of the High Court of American Samoa reversed the $6.6 million dollar judgment awarded in 2007 to Progressive Insurance Company (Pago Pago) Limited and against ASG. Reversal of the judgment relieves ASG of any obligation to pay to Progressive any monies previously awarded to Progressive by the trial court’s judgment. ASG was represented in the appeal by Deputy Attorney General Jennifer Augspurger and off-island co-counsel, Richard Bartmon.

 

In October 2007, ASG appealed the judgment awarded to Progressive for fire damage which occurred in 2002 to Forsgren’s Laufou Shopping Center, which was owned by Forsgren and was insured by Progressive. On July 24, 2007, the Trial Division had entered judgment in favor of Progressive in the amount of $6,606,784.00 after finding that the negligence of the American Samoa Government’s Fire Bureau resulted in damages to Progressive.  

 

The deciding factor, as stated by the Appellate Court, was the lack of any evidence in the court record indicating that either Progressive or Forsgren had complied with the American Samoa Code’s provisions regarding administrative remedies. The Appellate Court found that the Trial Court never acquired subject matter jurisdiction over Forsgren’s claim and that the judgment entered in favor of Progressive by the trial court must be reversed.

 

The Appellate Court stated that after the fire and prior to filing the lawsuit, Progressive had filed with the Attorney General a notice of claim alleging negligence by ASG’s Fire Bureau and seeking $6,000,000 in damages for monies paid to Forsgren by Progressive. A similar claim was also asserted against ASPA, due to an alleged failure to provide a sufficient water supply to fight the fire, which was subsequently settled during litigation for the sum of $300,000. 

 

The civil complaint filed by Progressive in 2004, as subrogee of Forsgren’s, sought damages of $6,000,000.00. During the course of the litigation, the Appellate Court found that Progressive had asserted that it was proceeding not as subrogee of Forsgren’s, but rather as assignee, and had sought damages in excess of $6,000,000. 

 

Finding that the Government Tort Liability Act of the American Samoa Code (A.S.C.A. Sec. 43.1201) must be strictly construed, the Appellate Court found an assignee is not permitted to bring a claim against the American Samoa Government and that sovereign immunity prevented Progressive from asserting its claim as assignee against ASG. In the absence of an expressed waiver of sovereign immunity in the American Samoa Code, the Appellate Court found that it must strictly construe the Government Tort Liability Act against any waiver of sovereign immunity. Sovereign immunity is a judicial doctrine which precludes bringing suit against the government without its consent.

 

The Appellate Court remanded the matter to the Trial Court for further proceedings consistent with its Opinion and Order. The court noted it was for the Trial Court to determine: 1) whether the assignment of Forsgren’s claim to Progressive merged with Progressive’s subrogation claim, which would require the Trial Division to dismiss this action while Progressive pursued its administrative remedies, or 2) whether Progressive has the ability, as subrogee, to proceed to trial against ASG.

 

Importantly, the Appellate Court, while noting that it was deciding this appeal on jurisdictional grounds, stated that the Government Tort Liability Act “does not contain any clearly expressed waiver of sovereign immunity” and that the Appellate Court, as well as the Trial Court, must “strictly construe this statute against any presumptive waiver of all vestiges of sovereign immunity.”