Zaunbrecher v. Succession of David
| Decision Date | 09 December 2015 |
| Docket Number | No. 15–769.,15–769. |
| Citation | 181 So.3d 885 |
| Parties | Zachary ZAUNBRECHER, et al. v. The SUCCESSION OF Leo J. DAVID, et al. |
| Court | Court of Appeal of Louisiana — District of US |
Steven J. Bienvenu, Falgoust, Caviness & Bienvenu, Opelousas, LA, for Defendant/Appellee, Louisiana Farm Bureau Ins. Co.
Michael T. Johnson, Valerie M. Thompson, Johnson, Siebeneicher & Ingram, Pineville, LA, for Defendant/Appellee, The Succession of Leo J. David.
Robert Marionneaux, Jeff D. Easley, The Marionneaux Law Firm, Baton Rouge, LA, for Plaintiff/Appellant, Zachary Zaunbrecher.
Amanda G. Clark, Mason C. Johnson, Forrester & Clark, Baton Rouge, LA, for Defendants/Appellees, Tunica–Biloxi Indians of Louisiana through the Tunica Biloxi Gamin Authority d/b/a Paragon Casino Resort, Jeremy Ponthieux, Nathan Ponthier, Marissa Martin.
Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and JOHN E. CONERY, Judges.
Zachary Zaunbrecher appeals a trial court judgment which dismissed his suit against the Tunica–Biloxi Gaming Authority d/b/a Paragon Casino Resort (Paragon Casino), Marissa Martin, Jeremy Ponthieux, and Nathan Ponthier for lack of subject matter jurisdiction based on tribal sovereign immunity. On appeal, Mr. Zaunbrecher does not complain about the dismissal of Paragon Casino. He argues that his claims against the three individual defendants should not have been dismissed because they are not entitled to sovereign immunity.
Paragon Casino is owned by the Tunica Biloxi Tribe through its Tunica Biloxi Gaming Authority. According to the petition and amending petition, Leo David went to the Paragon Casino on July 10, 2013, at 5:30 p.m. Ms. Martin was bartending that night and serving drinks to Mr. David. Twelve hours later, at approximately 6:00 a.m. on July 11, 2013, Mr. David was approached by two casino security guards, Mr. Ponthieux and Mr. Ponthier. Due to his intoxication, Mr. David was asked to leave the casino. Mr. Ponthieux and Mr. Ponthier escorted Mr. David to his automobile.
Once in his vehicle, Mr. David proceeded north on Louisiana Highway 1. Within five miles of the casino, Mr. David crossed the center line of the highway, striking Blake Zaunbrecher's vehicle, who was travelling south on Highway 1. Both Blake Zaunbrecher and Mr. David were killed as a result of the accident.
Zachary Zaunbrecher (Mr. Zaunbrecher), the son of Blake Zaunbrecher, filed suit against the estate of Mr. David, his insurer, and Louisiana Farm Bureau, the uninsured motorist insurer of Blake Zaunbrecher. He later amended his petition to add Paragon Casino, Ms. Martin, Mr. Ponthieux, and Mr. Ponthier (hereinafter collectively referred to as "casino defendants") as defendants. The casino defendants answered the petition and filed exceptions of lack of subject matter jurisdiction, no cause of action, and lis pendens.
A hearing on the exception of lack of subject matter jurisdiction was held on May 18, 2015. The trial court granted the exception of lack of subject matter jurisdiction and dismissed all of Mr. Zaunbrecher's claims against the casino defendants. Mr. Zaunbrecher then filed the present appeal.
On appeal Mr. Zaunbrecher argues that trial court erred in granting the exception of lack of subject matter jurisdiction as to Ms. Martin, Mr. Ponthieux, and Mr. Ponthier because, even though they are employees of Paragon Casino, they do not enjoy sovereign immunity for their individual tortious actions. Mr. Zaunbrecher does not contest that Paragon Casino has sovereign immunity as an instrumentality of the Tribe. See Kiowa Tribe of Oklahoma v. Mfg. Techs., Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998), which held that tribal sovereign immunity protects Indian tribes from suit absent express authorization by Congress or clear waiver by the tribe. Mr. Zaunbrecher argues that the three individual defendants are not the Indian Tribe and as such enjoy no sovereign immunity.
Whether a court has subject matter jurisdiction is a question of law which is reviewed de novo. State v. Murphy Cormier Gen. Contractors, Inc., 15–111 (La.App. 3 Cir. 6/3/15), 170 So.3d 370, writ denied, 15–1297 (La.9/25/15), 178 So.3d 573. A party raising a sovereign immunity defense challenges the subject matter jurisdiction of the state court. Id.
Tribal sovereign immunity does extend to a tribal officer who is acting in his or her official capacity and within the course and scope of his or her authority. Cook v. Avi Casino Enters., Inc., 548 F.3d 718 (9th Cir.2008), cert. denied, 556 U.S. 1221, 129 S.Ct. 2159, 173 L.Ed.2d 1156 (2009). Tribal immunity also protects tribal employees who are acting in their official capacity and within the course and scope of their authority. Id. The reason for extending sovereign immunity to tribal officials and employees is to protect an Indian tribe's treasury and prevent a plaintiff from bypassing tribal immunity by naming a tribal official or employee. Id. However, while a state court may not exercise jurisdiction over a recognized Indian tribe, a state court does have authority to adjudicate the rights of individual defendants when personal jurisdiction is proper.Puyallup Tribe, Inc. v. Dep't of Game of State of Washington, 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977).
Therefore, the question before us is whether these three individual defendants were sued in their capacities as employees of Paragon Casino or in their individual capacities. "As a general matter, individual or ‘[p]ersonal-capacity suits seek to impose personal liability upon a government official for [wrongful] actions he takes under color of ... law,’ and that were taken in the course of duties." Pistor v. Garcia, 791 F.3d 1104, 1112 (9th Cir.2015) (quoting Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985) ) (alterations in original). "An officer sued in his individual capacity, in contrast, although entitled to certain ‘personal immunity defenses[’], ... cannot claim sovereign immunity from suit, ‘so long as the relief is sought not from the [government] treasury but from the officer personally.’ " Id. (quoting Alden v. Maine, 527 U.S. 706, 757, 119 S.Ct. 2240, 2267–68, 144 L.Ed.2d 636 (1999) ) (emphasis in original) (second alteration in original).
In Cook, 548 F.3d 718, the plaintiff sued several casino employees for damages when she was hit by a drunk driver who was an employee of a tribal casino and had been served free drinks by other casino employees after she was obviously intoxicated. Casino employees then allowed their fellow employee to take a casino-run shuttle bus to her car so that she could drive home. The court recognized that the plaintiff sued the casino employees in name but sought recovery from the tribe because the complaint alleged that the tribe was vicariously liable for all actions of the casino employees. The court held that "[p]laintiffs such as Cook cannot circumvent tribal immunity through ‘a mere pleading device.’ " Id. at 727 (quoting Will v. Michigan Dept. of State Police, 491 U.S. 58, 70–71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) ).
However, in Maxwell v. County of San Diego, 708 F.3d 1075 (9th Cir.2013), the court found that a claim could be brought against tribal fire department medics in their individual capacities. The court concluded "that the Viejas Fire paramedics do not enjoy tribal sovereign immunity because a remedy would operate against them, not the tribe." Id. at 1087. Utilizing a remedy-focused analysis, the court reasoned that "[d]ue to ‘the essential nature and effect’ of the relief sought, the sovereign is not ‘the real, substantial party in interest.’ " Id. at 1088 (quoting Ford Motor Co. v. Dep't of Treasury of Ind., 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945) ).
In the present case, Mr. Zaunbrecher's petition alleges specific acts of negligence against the three casino employees, all of which occurred on casino property. While Mr. Zaunbrecher does assert that Paragon Casino is liable for the negligence and fault of the three individual defendants, there are also allegations pointing to the personal liability of the three individual defendants.
In Canter v. Koehring Co., 283 So.2d 716, 721 (La.1973), superseded by statute on other grounds, La.R.S. 23:1032 (emphasis added)(footnote omitted), the Louisiana Supreme Court set out four criteria that must be satisfied to impose individual liability on an employee for injury to a third person caused by the employee's breach of an employment-imposed duty:
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Zaunbrecher ex rel. Father v. Martin
...and reversed the trial court's ruling dismissing Ms. Martin, Mr. Ponthier, and Mr. Ponthieux. See Zaunbrecher v. Succession of David , 15-769 (La.App. 3 Cir. 12/9/15), 181 So.3d 885, writ denied , 16-49 (La. 2/26/16), 187 So.3d 1002. Certiorari was then denied by the Supreme Court in Tunica......