15 CCAR 52, 8 CTCR 15
Nikki DICK and Carla MARCONI, Appellants,
v.
COLVILLE CONFEDERATED TRIBES, Appellee.
Nos. AP21-008, AP21-009
Colville Confederated Tribes Court of Appeals
June 13, 2022
Pouley, J.
FACTS
Appellants Nikki Dick and Carol Marconi were both employed by the Tribes. In November of 2007 the Tribes, attempting to address financial shortfalls, terminated many employees, including the Appellants. Appellants both filed appeals pursuant to the Tribes' Employment Policy Manual. In June 2008, an Administrative Law Judge made favorable rulings for both Appellants. The ALJ overturned their terminations, awarded back wages, and ordered their reinstatement. Despite the outcome of the ALJ review, the Tribes did not pay the back wages or reinstate the Appellants to their previous positions. Appellants filed complaints in the Colville Tribal Court.
In July 2008 the trial court upheld the substance of the ALJ order, overturning the employment terminations. However, the court noted that the jobs subject to reinstatement no longer existed and were not budgeted for. In addition, the Tribe had not budgeted to pay back wages. The Court noted its limited authority to order the Business Council to act, so the court encouraged the parties to negotiate a settlement. The matter returned to the trial court in May 2011[1 ] after the parties attempts at settlement were unsuccessful. Consistent with its earlier ruling, the trial court upheld the ALJ decision, but dismissed the Appellants' actions, finding the court did not have authority to require the Tribes to reestablish the jobs or budget for them. In addition, the court did not have authority to award monetary damages since there was no insurance policy to pay the damages. No appeal was taken from this order.
The matter before this court was filed on July 29, 2016. Appellants claim they discovered that an insurance policy existed at the time of the original suit. They claim the Tribes intentionally or negligently withheld this information at the time of the original action. The Tribes tendered Appellants' claims to their insurer, AIG Insurance, who issued a coverage letter in August 2017. The insurer declined coverage, citing specific exclusion language within the policy and additional language excluding payment of "back wages" contained in Employment Related Liability Endorsement. This appeal followed.
DECISION
As the issues before the court are matters of law, the standard of review is de novo. Naff v CCT, 5 CCAR 50 (1995).
The 2011 final judgment of the trial court was not appealed so the decision rendered by the court is final. To the extent Appellants' current pleadings challenge the findings of the court or seek to "reopen" litigation of the points already decided, Appellants' claims must fail. The only valid question is whether the Appellants have an actionable claim against the Tribes based on the allegation that the Tribes failed to disclose the existence of insurance coverage at the time of the original litigation. We find that no actionable claim exists, and we therefore AFFIRM the trial court's dismissal of Appellants' claims.
It is well established that the Colville Confederated Tribes, as a sovereign, may not be sued unless it waives that sovereign immunity. In addition, the Tribes may limit any such waiver to specific claims and remedies. CTEC v. Orr, 5 CCAR 1, at 4 (1998). The Colville Civil Rights Act provides a limited waiver of sovereign immunity, and this court has reviewed permissible claims and remedies allowed by the waiver numerous times. We do so again in this case.
CTC 1-5-2 enumerates specific civil rights protected by the code. CTC 1-5-4 only allows actions seeking declaratory and/or injunctive relief to be brought in the Tribal Court to protect the enumerated rights. CTC 1-5-8 allows for an award of monetary damages only to the extent there exists an insurance policy that will cover the claimed loss. There is no requirement that the Tribes maintain any insurance policy or that any policy that exists provide any specific scope of coverage. In other words, the Tribes may further limit the narrow waiver of immunity by simply not seeking or providing coverage for any alleged civil rights violations.
In the 2011 rulings on the matters, the trial court entered declaratory relief as provided in CTC 1-5-4. Unfortunately, the court also concluded that it had no authority to order the Colville Business Council to create and budget the job positions once held by the Appellants. The court correctly found that the Appellants were damaged by the Tribes' actions, but that the court lacked any available remedy. This decision was not appealed and thus stands. The court also found that since the Appellants did not present an insurance policy that provided coverage for back wages awarded by the ALJ, and affirmed by the court, those claims too must be dismissed. This decision was not appealed, but Appellants now claim the Tribes improperly withheld the existence of such a policy and that damages should be awarded because of the Tribes' misconduct. Regardless of how one gets there, the only damages that could possibly be awarded are for "back wages" as awarded by the ALJ.
In this case the trial court correctly found that even if the claims may be resurrected from dismissal in 2011, unlawful discharge, malpractice, misfeasance and malfeasance, unlawful retaliation, negligence and negligent supervision, and outrage all sound in tort and are not civil rights violations enumerated in 1-5-2. These claims are absolutely barred by sovereign immunity and no express waiver of immunity exists. The claims were correctly dismissed in 2011 and there is no basis to reexamine them today. Likewise, the court correctly found the court may not order Appellants' reinstatement as that issue was decided in 2011 and never appealed.
Appellant's claim the Tribes acted wrongfully by not disclosing a valid insurance policy during the original litigation. They further argue that such failure constitutes an "Error, misstatement, misleading statement, omission, neglect or breach of duty of the INSURED; that arises out of the discharge of duties for the NAMED INSURED, individually or collectively" which is a covered loss under the Colville Business Councils Errors and Omissions insurance policy in effect in 2006-2007. Even if true, this argument does not create an actionable claim because the alleged misconduct is not an enumerated civil rights violation. For that, Appellants reach back to the 2011 findings that their civil rights were violated when the Tribes failed to comply with the ALJ order. The only claim of damages Appellants might assert under CTC 1-5-8 then, is for "back wages" which were awarded, but never paid.
In Gibson v. CTC, 14 CCAR 39 (2019), this Court held that the Tribes may raise sovereign immunity as an absolute defense to actions brought under CTC 1-5-8, regardless of the existence of insurance coverage. In Williams v. CTC, AP 19-014 this Court held that when sovereign immunity has not been asserted as an affirmative defense, and when an insurance policy is presented, the court must enter a process of fact-finding and legal analysis to determine if damages may be awarded. The court may only award damages for injuries suffered because of violations of rights enumerated in 1-5-2. If the claims meet this first test, only damages covered by a valid and enforceable insurance policy may be awarded by the court. As this court held in both Gibson and Williams, regardless of the existence of any insurance policy, the Tribes, as sovereign, may assert complete immunity from suit or direct the Tribes' liability insurer to raise sovereign immunity as a defense.
In the original action between these parties the Tribes asserted sovereign immunity as a defense to the award of damages, no claim was tendered to an insurer for review of coverage, and no policy was presented to the court. While the 2011 decision is not before this court for review, it is clear the court correctly dismissed the Appellants' claims for damages. Does the Tribes' failure to present an existing policy during the original litigation open it to a valid claim for damages in this case?
When this matter was filed, the Tribes tendered the claim to their insurer. After full review the insurer concluded that there is no coverage for an award of "back wages." The Appellants attempt to argue that other language in the policy might support another conclusion, but the exclusion of back wages is clear an unambiguous and leaves no doubt there is no coverage for the Appellants' only civil rights claims. Like the court did in 2011 the 2021 order before us also correctly dismissed the Appellants' claims for damages.
This court is not blind to the unfortunate position to which the Appellants are left by our decision. As Judge Aycock identified in his first ruling in this matter, the Appellants were wronged by the Tribes' actions, and they deserve a remedy. In his order Judge Aycock encouraged the Tribes and the Appellants to negotiate a settlement that might at least partially satisfy everyone. Unfortunately, the parties were unable to do that and the Colville Tribal Court system, at trial and appeal, is unable to fashion a satisfactory remedy.
The decision of the trial court is AFFIRMED.
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Notes:
[1 ]It is unclear from the record why the decision in the initial case was delayed beyond the 60-day review set by the court. It is similar unclear why the matter before the court, filed in 2016, did not have a final order until 2021. The delays are immaterial to this Court's decision.
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