Elliott v. Colorado Dept. of Corrections, 92CA0750

• Decision Date: 25 March 1993
• Docket Number: No. 92CA0750,92CA0750
• Citation: 865 P.2d 859
• Parties: Jimmie Sue ELLIOTT, individually as heir and beneficiary of Norman L. Elliott, deceased, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF CORRECTIONS, Public Employees' Retirement Association of Colorado, and the State of Colorado, Defendants-Appellees. . III
• Court: Colorado Court of Appeals

Page 859

865 P.2d 859

Jimmie Sue ELLIOTT, individually as heir and beneficiary of

Norman L. Elliott, deceased, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF CORRECTIONS, Public Employees'

Retirement Association of Colorado, and the State

of Colorado, Defendants-Appellees.

No. 92CA0750.

Colorado Court of Appeals,

Div. III.

March 25, 1993.

Rehearing Denied May 13, 1993.

Certiorari Denied Jan. 10, 1994.

Smith, Billups & Vigna, Kenneth R. Billups, Pueblo, for plaintiff-appellant.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Jane R. Christman, First Asst. Atty. Gen., Denver, for defendants-appellees Dept. of Corrections and the State of CO.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Eric R. Decator, Asst. Atty. Gen., Denver, for defendant-appellee Public Employees' Retirement Ass'n.

Opinion by Chief Judge STERNBERG.

In this action for breach of an alleged agreement to obtain the issuance of life insurance policies, plaintiff, Jimmie Sue Elliott, as heir and beneficiary of Norman L. Elliott, deceased, appeals from the judgment which dismissed her complaint against defendants, the Colorado Department of Corrections (DOC), Public Employees' Retirement Association of Colorado (PERA), and the State of Colorado. We affirm in part and reverse in part.

The complaint's first claim for relief was for breach of contract. It alleged that both DOC, who was decedent's employer, and PERA, an employee benefit organization, were public entities within the State of Colorado. It further alleged that on or about November 8, 1988, decedent enrolled in two separate life insurance plans which were offered as an employment benefit through PERA. Attached to the complaint were copies of the signed enrollment forms which authorized DOC to deduct contributions from the decedent's paycheck for the payment of insurance premiums.

The complaint alleged that, pursuant to the agreement, DOC began deducting the authorized amounts from decedent's monthly pay. Finally, the complaint alleged that although defendants retained the premiums paid by decedent, they failed to deliver the policies to decedent or to pay plaintiff the policy proceeds upon demand.

Plaintiff's second and third claims for relief requested damages for defendants' alleged negligence in failing to obtain life insurance coverage, failing to continue the decedent's payroll deductions, and failing to notify him of the discontinuance.

The DOC and the State of Colorado filed a C.R.C.P. 12(b)(5), motion to dismiss the complaint, asserting that plaintiff's claims were barred by the doctrine of sovereign immunity.

PERA filed an answer in which it admitted it had paid no monies to plaintiff and denied any breach of contract. It further denied that it had negligently failed to obtain coverage or that its actions caused any loss of coverage to plaintiff. Among other defenses, it asserted the doctrine of sovereign immunity.

Plaintiff filed a response to DOC's motion in which she asserted that claims for breach of contract were outside the scope of sovereign immunity. DOC filed a reply brief asserting that, because plaintiff's claims could lie in tort, they were barred by § 24-10-106(1), C.R.S. (1988 Repl.Vol. 10A).

Subsequently, pursuant to C.R.C.P. 12(b), PERA filed a motion to dismiss which incorporated the terms of DOC's motion and asserted sovereign immunity as a bar to plaintiff's claims.

The trial court granted the motions to dismiss. In so ruling, the court stated that: "[A]lthough an argument can be made that plaintiff's claim is quasi-contractual in nature, it is certainly a claim that sounds in tort and which could lie in tort." Accordingly, because no waiver of immunity for plaintiff's type of injury was specified in § 24-10-106, C.R.S. (1988 Repl.Vol. 10A), the action was dismissed.

Plaintiff contends that the trial court erred in concluding that her breach of contract claim was barred by § 24-10-106(1). She concedes that she will have the burden of proving the existence of the alleged contract, but argues that she should have that opportunity at trial. We agree.

The Colorado Governmental Immunity Act provides that, with certain statutory exceptions, a public entity is immune from liability in all claims for injury which lie in tort or could lie in tort, regardless of whether that may be the type of action or form of relief chosen by the claimant. Section 24-10-106(1). However, the Colorado Governmental Immunity Act was not intended to apply to contract actions. State Personnel Board v. Lloyd, 752 P.2d 559 (Colo.1988); Grimm Construction Co. v. Denver Board of Water Commissioners, 835 P.2d 599 (Colo.App.1992).

Thus, we must examine the substance of plaintiff's breach of contract claim to determine whether it arose from the terms of the alleged contract or whether it could lie in tort. Morrison v. City of Aurora, 745 P.2d 1042 (Colo.App.1987). If, under Grimm and Morrison, the claims are for breach of obligations which arose from the terms of a contract, the public entity is not immune.

A statute may create contractual obligations when its language and the surrounding circumstances manifest a legislative intent to create private contractual rights enforceable against the state. See Colorado Springs Fire Fighters Ass'n v. City of Colorado Springs, 784 P.2d 766 (Colo.1989). See also Continental Air Lines, Inc. v. Keenan, 731 P.2d 708 (Colo.1987) (...