Cynthia Bourgeois v. Harrah's Bossier City, etc

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1705
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Cynthia Bourgeois, *
*
Plaintiff/Appellant, *
*
v. *
*
Douglas Vanderbilt; Southern *
Farm Bureau Casualty Insurance *
Company; State Farm Mutual *
Automobile Insurance Company; *
National Interstate Insurance Company, *
*
Defendants, * Appeals from the United States
* District Court for the
Harrah's Bossier City Investment * Western District of Arkansas.
Company, LLC, also known as *
Harrah's Louisiana Downs Casino * [UNPUBLISHED]
& Racetrack, also known as Louisiana *
Downs, Inc. *
*
Defendant/Appellee. *
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No. 10-1706
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Cynthia Bourgeois, *
*
Plaintiff, *
v. *
*
Douglas Vanderbilt; Southern Farm *
Bureau Casualty Insurance Company; *
State Farm Mutual Automobile *
Insurance Company; National Interstate *
Insurance Company, *
*
Defendants, *
*
Harrah's Bossier City Investment *
Company, LLC, also known as Harrah's *
Louisiana Downs Casino & Racetrack, *
also known as Louisiana Downs, Inc. *
*
Defendant/Appellee, *
*
National Interstate Insurance Company, *
*
Intervenor/Appellant. *
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Submitted: December 15, 2010
Filed: May 17, 2011
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Before RILEY, Chief Judge, BEAM and BENTON, Circuit Judges.
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PER CURIAM.
In 2005, a truck driven by Douglas Vanderbilt (a Texas resident) struck a tour
bus operated by Cynthia Bourgeois (a Louisiana resident) on a highway in Arkansas.
Vanderbilt was intoxicated, driving home from a trip to Harrah's casino located in
Shreveport, Louisiana. By way of this action, Cynthia Bourgeois seeks redress for the
injuries she incurred as a result of the accident. The district court,1 sitting in diversity
1
The Honorable Harry F. Barnes, United States District Judge for the Western
District of Arkansas.
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and applying Louisiana substantive law, granted summary judgment in favor of
Harrah's. Bourgeois appeals.2
A district court sitting in diversity generally applies the choice-of-law rules of
the forum state. Global Petromarine v. G.T. Sales & Mfg., Inc., 577 F.3d 839, 844
(8th Cir. 2009). Here, the district court looked to Arkansas choice-of-law principles
to determine which state's substantive law applied. Arkansas courts have moved away
from a mechanical application of the lex loci delicti doctrine3 and have adopted five
choice-influencing factors promulgated by Dr. Robert A. Leflar ("Leflar Factors") to
soften the application of the rigid lex loci delicti rule. Schubert v. Target Stores, Inc.,
201 S.W.3d 917, 920-22 (Ark. 2005). Thus, while keeping the lex loci delicti doctrine
in mind, the district court analyzed the following five factors: (1) predictability of
results; (2) maintenance of interstate and international order; (3) simplification of the
judicial task; (4) advancement of the forum's governmental interests; and (5)
application of the better rule of law. Schubert, 201 S.W.3d at 921. "We review a
district court's choice-of-law determination de novo." Eggleton v. Plasser & Theurer
Exp. Von Bahnbaumaschinen Gesellschaft, MBH, 495 F.3d 582, 585 (8th Cir. 2007).
In this case, which state's law the court applies is likely outcome determinative
because only under Arkansas law does Bourgeois retain the possibility of recovery.
The Louisiana legislature adopted an anti-dram shop liability act that provides
immunity to vendors and servers of alcohol, thus placing responsibility for
consequences of intoxication on the intoxicated person. La. Rev. Stat. Ann. §
9:2800.1(B). Arkansas, however, allows recovery of damages if a plaintiff proves that
2
National Interstate Insurance Company, the workers' compensation carrier for
Dixie Land Tours and an intervenor in these consolidated proceedings, is also a named
appellant and, upon motion, joined in Bourgeois' briefing.
3
"Under the doctrine of lex loci delicti, the law of the place where the wrong
took place is the proper choice of law." Ganey v. Kawasaki Motors Corp., 234
S.W.3d 838, 846 (Ark. 2006).
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a vendor "knowingly sold alcoholic beverages to a person who was clearly
intoxicated." Ark. Code Ann. §§ 3-3-209, 16-126-104. On appeal Bourgeois asserts
that the five Leflar Factors favor the application of Arkansas law, not Louisiana law.
Should we affirm the district court's application of Louisiana law, Bourgeois
additionally argues that there is an unresolved question in Louisiana law regarding the
existence, or not, of an exception to the anti-dram shop liability statute that should be
addressed by the Louisiana State Supreme Court in the first instance. Bourgeois also
requested certification of certain questions to the Arkansas State Supreme Court
specifically regarding whether Arkansas dram shop law can be applied to a Louisiana
casino and whether Arkansas would apply only the law of negligence to this case
because Harrah's served, rather than sold, free liquor to Vanderbilt.
The district court did not err in applying Louisiana law to the issues at hand.
See Ganey, 234 S.W.3d at 846-47 (applying the Leflar Factors under similar
circumstances and determining that Louisiana law applied). The court aptly applied
the Arkansas choice-of-law principles and thoroughly analyzed each of the five Leflar
Factors in light of the facts of this case, as required. After careful review of the
district court's well-reasoned opinion, including its discussion of negligent
entrustment, we deny Bourgeois' motion requesting certification to the Arkansas and
Louisiana State Supreme Courts, and affirm. See 8th Cir. R. 47B.
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