The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:18-cv-00134-MR-DSC
CANDY LOSSIAH, Administratrix of )
the Estate of ANTHONY EDWARD )
LOSSIAH, )
)
Plaintiff, )
)
vs. ) O R D E R
)
UNITED STATES OF AMERICA, )
)
Defendant. )
_______________________________ )
THIS MATTER is before the Court on the Defendant’s Renewed
Motion to Dismiss Complaint for Lack of Subject Matter Jurisdiction, or in the
Alternative, Motion for Summary Judgment [Doc. 33].
I. BACKGROUND
On August 11, 2015, Anthony Lossiah (“Lossiah”), a police officer for
the Eastern Band of Cherokee Indians (the “EBCI”), suffered a hip injury
while chasing a suspect. He sought treatment for his injury at the Cherokee
Indian Hospital. The medical providers who treated Lossiah are deemed to
be employees of the United States Department of Health and Human
Services (“DHHS”) Public Health Service.1 Lossiah subsequently developed
a severe infection and died in October 2015.
Lossiah’s widow, the Plaintiff Cindy Lossiah (“the Plaintiff”), filed a
claim under North Carolina’s Workers’ Compensation Act, N.C. Gen. Stat. §
97-2, et seq. On December 8, 2016, the Plaintiff entered into a Settlement
Agreement with the EBCI on behalf of herself and her minor children. On
May 12, 2017, the North Carolina Industrial Commission approved the
Settlement Agreement.
On May 16, 2018, the Plaintiff, in her capacity as the Administratrix of
Lossiah’s estate, filed this wrongful death action pursuant to the Federal Tort
Claims Act, 28 U.S.C. § 2761, et seq. (“FTCA”) against the United States,
asserting claims of negligence and professional malpractice in connection
with the medical care provided to Lossiah at Cherokee Indian Hospital.
The United States moved to dismiss the Plaintiff’s Complaint pursuant
to Federal Rules of Civil Procedure 12(b)(1) and (6). [Doc. 9]. Specifically,
the Government argued that the Court lacked subject matter jurisdiction
1 On September 21, 2002, the EBCI, a federally recognized Indian tribe, and DHHS
entered into an agreement for the administration of health care services known as a Title
V Self-Governance Compact. [Doc. 34-1: Title V Self-Governance Compact]. In turn, the
EBCI established the Cherokee Indian Hospital Authority to provide health care to its
members. [See Doc. 34-2: Blankenship Decl. at 2 ¶ 5].
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because the worker’s compensation claim was the Plaintiff’s exclusive
remedy. The Government further argued that the Plaintiff had failed to state
a claim upon which relief can be granted because the Settlement Agreement
barred the present action. [Id.].
Pursuant to 28 U.S.C. § 636(b) and the standing Orders of Designation
of this Court, the Honorable David S. Cayer, United States Magistrate Judge,
was designated to consider the Defendant’s motion and to submit a
recommendation for its disposition. The Magistrate Judge entered a
Memorandum and Recommendation recommending that the motion to
dismiss be denied. [Doc. 18]. The Government objected to the Magistrate
Judge’s recommendation. [Doc. 20]. The Court accepted the Magistrate
Judge’s recommendation and denied the Government’s motion to dismiss
on April 10, 2019. [Doc. 22].
The Court then entered a Pretrial Order [Doc. 27], and the case
proceeded to discovery. Discovery has now closed, and this matter is
scheduled for a bench trial during the March 8, 2021 trial term. The
Government now renews its motion to dismiss or for summary judgment on
the same grounds as asserted in its original motion. As additional support
for its motion, the Government submits inter alia a Declaration from Cory
Blankenship, EBCI’s Secretary of the Treasury, which provides additional
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details about EBCI’s workers’ compensation program and the relationship
between EBCI and the Cherokee Indian Hospital. [See Doc. 34]. The
Plaintiff has filed a response in opposition to the Government’s motion [Doc.
36], and the Government has replied [Doc. 37]. Having been fully briefed,
this matter is ripe for disposition.
II. DISCUSSION
A. Whether the Workers’ Compensation Claim is Exclusive
Remedy
In denying the Government’s motion to dismiss, the Court concluded
that the exclusivity provision of the North Carolina Workers’ Compensation
Act, N.C. Gen. Stat. § 97-9, does not preclude the instant action. In so
concluding, the Court reasoned that:
[T]he Cherokee Indian Hospital does not conduct the
EBCI’s business, as that phrase is intended by § 97-
9. The CIH is not involved in the day-to-day
operations of the EBCI or charged with managing the
EBCI in any respect, much less with regard to the
ECBI police department or the conditions or
circumstances of Lossiah’s employment. The
Hospital exists as a separate entity that is operated
and controlled by its own Board of the Cherokee
Indian Hospital Authority (CIHA). The CIHA is an
umbrella body that operates the CIH, as well as other
clinics and health programs run for the EBCI.
[Doc. 22 at 7 (footnote omitted)].
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The Court then turned to the relevant provisions of the Eastern Band
of Cherokee Indians Code of Ordinances (“Tribal Code”), which sets forth
the powers and duties of the Governing Board of the CIHA. After reviewing
those provisions, the Court concluded that “the Tribal Code establishes the
CIHA as a ‘component unit’ distinctly separate from any operation by or of
the EBCI. As such, the CIH may come within the purview of § 97-9 with
regard to an injury to a nurse arising from a mishap in the operating room
(regardless of negligence), but not with regard to the medical negligence that
contributed to an injury of a person who happens to be an employee of the
EBCI.” [Id. at 9].
In renewing its motion to dismiss for lack of subject matter jurisdiction,
the Government submits additional materials, which the Government
contends demonstrates an element of control by EBCI with respect to the
Cherokee Indian Hospital. [Docs. 34-1 through 34-7]. Of these materials,
the Self-Governance Compact and Funding Agreement [Doc. 34-1] and the
Agreement for Final Compromise Settlement and Release [Doc. 34-7] were
before the Court at the time of the prior Order denying the Government’s
motion to dismiss. None of these additional documents addresses the
element of EBCI control (or lack thereof) of the Cherokee Indian Hospital
Authority. Rather, these documents generally address the availability of
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workers’ compensation benefits to EBCI employees of all its component
units, including the Cherokee Indian Hospital, and the funding for such
benefits.
For example, most of the Declaration of Cory M. Blankenship, the
Secretary of the Treasury for the EBCI, addresses the administration of the
EBCI’s Workers’ Compensation program. Mr. Blankenship’s Declaration,
however, does not address the independence of the Cherokee Indian
Hospital Authority as established by the Tribal Code. As the Court previously
explained, the fact that the EBCI allows for the provision of workers’
compensation to employees of the Cherokee Indian Hospital does not
preclude a medical action for negligence “that contributed to an injury of a
person who happens to be an employee of the EBCI.” [Doc 22 at 7].
The Government further argues, albeit in a footnote, that Mr. Lossiah’s
situation is analogous to a federal employee who seeks relief for a job-related
injury under the Federal Employees’ Compensation Act, 5 U.S.C. § 8101, et
seq. (“FECA”). [Doc. 34 at 18 n.4]. This argument, however, is misplaced.
FECA specifically precludes any Federal Tort Claim Act actions by rendering
the liability of the United States under FECA “exclusive and instead of all
other liability of the United States . . . under a federal tort liability statute.” 5
U.S.C. § 8116(c). By contrast, the exclusivity provision of N.C. Gen. Stat. §
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97-9 extends only to the “employer or those conducting its business.” As
Cherokee Indian Hospital is “not conducting [the] business” of the EBCI, the
exclusivity provision of § 97-9 is simply inapplicable here.
In short, the Court concludes that the additional materials and legal
arguments presented by the Government do not change the Court’s prior
analysis. The Government’s argument that this Court lacks subject matter
jurisdiction because the exclusivity provision of N.C. Gen. Stat. § 97-9
applies to the Government, insofar as it stands in the shoes of the CIHA
under the FTCA, is without merit.
B. Whether the Settlement Agreement Bars the Present Action
The Government also renews its argument that the Settlement
Agreement resolving the workers’ compensation claim bars the present
action.
On this point, the Court previously concluded that Settlement
Agreement did not bar the present action because the personal
representative of the Estate of Anthony Edward Lossiah was not a party to
that Agreement and thus did not release any FTCA claim. [Doc. 22 at 10].
Further, the Court noted that the Settlement Agreement was clear as to the
subject matter released and did not include the FTCA claim asserted herein
by the Plaintiff Administratrix:
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[The Settlement Agreement] releases claims against
any parties “charged or chargeable with
responsibility or liability … which … [Plaintiffs] ever
had or may have, by reason of or growing out of the
terms and provisions of the North Carolina Workers’
Compensation Act.” [Doc. 10-1 at 15]. This claim
asserts no liability growing out of the terms and
provisions of the Workers’ Compensation Act. Quite
the contrary, Plaintiff herein asserts a medical
malpractice claim entirely outside of any liability that
arose pursuant to the Act. As such, this claim is
outside the scope of the claims released in the
Settlement Agreement.
[Id. at 11].
In support of its motion for summary judgment on this issue, the
Governments cites the Declaration of Cory Blankenship, in which he states
that the “EBCI made the decision to settle Mr. Lossiah’s workers’
compensation case” because the “EBCI intended to reach a global
settlement with Mr. Lossiah’s beneficiaries and his estate regarding the
events that gave rise to [the] workers’ compensation claim, including the
medical care that Mr. Lossiah received at Cherokee Indian Hospital in the
fall of 2015, and his death on October 6, 2015.” [Doc. 34-2: Blankenship
Decl. at 5-6 ¶¶ 20, 21].
The language of the Settlement Agreement, however, is clear and
unambiguous. It specifically provided that “no rights other than those arising
under the provisions of the Workers’ Compensation Act are compromised or
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released under this Agreement.” [Doc. 34-7 at 12]. The Government cannot
now offer parol evidence to contradict the unambiguous language of this
Agreement. See WFC Lynnwood I LLC v. Lee of Raleigh, Inc., 259 N.C.
App. 925, 930, 817 S.E.2d 437, 441 (2018). If the EBCI intended for the
settlement to encompass any negligence claim arising out of Mr. Lossiah’s
medical care, it failed to express such intention in the Settlement Agreement.
Even if the Court were to find that the Settlement Agreement was
ambiguous so as to allow extrinsic evidence to be admitted regarding the
parties’ intentions, the Plaintiff presents conflicting declarations regarding the
stated intent of the signatories. [See Docs. 36-1, 36-2, 36-3]. As such, a
factual dispute would be before the Court, precluding the grant of summary
judgment in favor of the Government on this issue.2
For all these reasons, the Court concludes that the Settlement
Agreement does not bar the present action. The Government’s motion for
summary judgment on this issue is therefore denied.
2 In any event, the Court notes that it is questionable how Blankenship could make any
statement regarding the parties’ intent when he was not the treasurer of the EBCI at the
time that the Settlement Agreement was executed. [See Doc. 34-2: Blankenship Decl. at
1 ¶ 1 (stating that he has been treasurer in June 2017)].
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IT IS, THEREFORE, ORDERED that the Defendant’s Renewed Motion
to Dismiss Complaint for Lack of Subject Matter Jurisdiction, or in the
Alternative, Motion for Summary Judgment [Doc. 33] is DENIED.
IT IS SO ORDERED. Signed: January 25, 2021
= a i
< Reidinger ey
Chief United States District Judge “AES
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