A California couple waited too long to file a lawsuit over an alleged bed bug infestation at the casino owned by the Barona Band of Mission Indians, a state appeals court ruled.

Robert and Gloria Chisley filed a claim with the tribe's insurance company after they said they suffered bites and other injuries from bed bugs at the Barona Casino. The claim was denied and the couple timely appealed to tribal court.

But the couple didn't file a lawsuit in state court until August 2007, two years after their August 2005 stay at the casino. The case was dismissed in November 2007 when the tribe successfully raised a sovereign immunity defense.

Around the same time, the tribal court dismissed the appeal of the insurance claim. It doesn't appear that the couple pursued further tribal remedies.

Subsequently, the Chisleys filed a different lawsuit in state court in March 2009. This one named Orkin Exterminating Company and an Orkin employee as defendants.

The couple asked the California Fourth District Court of Appeals to ignore the long delay because they said they were exhausting their tribal remedies. But Orkin and the employee were never a part of the tribal case and weren't part of the first state court case.

"Here, as we have noted, no claims against Orkin and [employee] were ever made in tribal court and the claims made in the trial court were made three and one-half years after the Chisleys were bitten," the court said in an unpublished opinion on Wednesday.

"In sum then, tribal exhaustion does not apply here because there was no conflict in jurisdiction with the tribal court and in any event tribal exhaustion does not excuse a plaintiff's failure to file a timely claim in a proper forum," the court said.

Get the Story:
Bed bug lawsuit not on time (San Diego Public Policy Examiner 7/21)

California Fourth District Court of Appeals Decision:
Chisley V. Orkin Exterminating Company (July 20, 2011)