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Supreme Court ruling may help victims of casino bus crash

April 27, 2017 GMT

McALLEN — A U.S. Supreme Court decision regarding a fender bender in Connecticut may benefit defendants suing a charter bus company and the casino they claim is responsible for a deadly crash last year.

On Tuesday the Supreme Court held that the sovereign immunity of Indian tribes extended to them and their employees does not extend to suits against tribal employees when the employee, instead of the tribe, is the “real party of interest,” according to the ruling document.

The case involved an employee for the Mohegan Tribal Gaming Authority who, while driving customers of the casino, crashed his car into another car while driving on a Connecticut interstate, outside the boundaries of the Mohegan Reservation.

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The plaintiffs, Brian and Michelle Lewis, sued Clark in state court but Clark moved to have the lawsuit dismissed, arguing that because he was working as an employee of the casino he was protected by the tribe’s sovereign immunity.

Ultimately the Connecticut Supreme Court dismissed the suit saying that allowing someone to sue another person individually to overcome the tribal immunity would render tribal immunity worthless.

The Supreme Court’s ruling states a tribe’s sovereign immunity does not extend to tribal employees.

That decision may have an impact on lawsuits filed on the behalf of some more than 20 people who were either injured or killed in a May 2016 bus crash near Laredo.

On May 14, 2016, nine people died and more than 40 were injured after their charter bus, operated by OGA Charters LLC of San Juan, rolled over near Laredo as it was in route to the Kickapoo Lucky Eagle Casino and Hotel, according to the court documents.

John David Franz, a McAllen-based attorney representing some of the plaintiffs, said he was less than optimistic about their chances of even having the case heard in Hidalgo County courts prior to the ruling Tuesday.

“It was my impression that at some point the claims against the casino would be dismissed based on the law, but now with the Supreme Court opinion, though, I think the door is definitely open for us to proceed,” Franz said Wednesday. “The recent decision gives them at the very least the opportunity to prove their case in court.”

The lawsuit claims Lucky Eagle Casino was negligent in failing to evaluate the bus driver’s qualifications, failing to oversee the operation of buses transporting passengers to the casino and failing to ensure that plaintiffs and others arrived at the casino in a safe manner.

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As part of the suit, Franz named as defendants the driver of the bus, and the bus coordinator, who Franz said were authorized by Lucky Eagle Casino to recruit customers by offering cash and other incentives to visit their casino.

He says the determination made by the Supreme Court that the immunity cannot be extended to employees applies in the bus crash lawsuit.

Franz said the lawsuits, which were formally filed May 16, 2016, are currently in various Hidalgo County state district courts —10 in total that involve more than 20 people injured or killed in the crash.

“I think there is little doubt now that we will be able to proceed in state court against the Lucky Eagle Casino for negligence, and that we will get an opportunity to prove our case in state court, and if not, this case could very likely go to the Supreme Court of the United States,” Franz said. “The Supreme Court can decide based on the facts of our case whether a tribe should be afforded immunity for negligent conduct that occurs off of the reservation. We think that’s very unfair to victims of negligence. The way we see it is if you or I can be held liable for injuring someone on a state highway, or federal highway off an Indian reservation, so too should an Indian tribe, or tribal organization be held liable.”

Despite the favorable ruling, Franz said the proceedings for those lawsuits will remain untouched until a bankruptcy judge makes a ruling in the current federal bankruptcy proceedings involving the OGA Charters.

In July, U.S Bankruptcy Judge Eduardo Rodriguez granted a preliminary injunction in the case involving OGA Charters, essentially freezing the settlement funds, which would have claimed up to 70 percent of the total amount of the $5 million that OGA Charter’s insurance company is liable for under terms of the insurance.

Rodriguez is expected to make a determination on whether the bankruptcy court is going to take charge of the disbursement or not.

While they await a ruling from Rodriguez, which does not have a time frame, meaning a decision could be made at any time, whether in a day or two, or two months from now, Franz said he plans on preparing his legal arguments for their case in state district court.

“We believe now we’ll get a day in court to establish negligence against the casino (and OGA Charters),” Franz said. “We feel good about that.”

lzazueta@themonitor.com