C.A. Revives Actions Over Deadly Crash Of Bus Carrying French Tourists

Monday, August 24, 2015

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C.A. Revives Actions Over Deadly Crash Of Bus Carrying French Tourists

Judge Acted Precipitously in Dismissing Case in Favor of Foreign Forum, Panel Says

By KENNETH OFGANG, Staff Writer

A Monterey Superior Court judge acted prematurely in dismissing consolidated lawsuits over an April 2009 bus rollover that killed five people and injured dozens more, the Sixth District Court of Appeal ruled Friday.

The justices ordered reconsideration of Judge Kay T. Kingsley’s dismissal order in the suits by 26 plaintiffs, who were injured—or whose family members were killed—in the April 2009 incident on the Highway 101 overpass near Soledad. The court said the judge must hold an evidentiary hearing in order to determine whether the plaintiffs’ claims against a French tour operator can actually be litigated in French courts.

—AP

This file photo shows the scene of a multi-fatal accident involving a tour bus traveling south on Highway 101 near Soledad in April 2009. The Sixth District Court of Appeal Friday reinstated legal claims resulting from the incident.

Multiple passengers were injured and four were killed—as was the American driver—when the bus crashed and rolled. A number of the passengers flew from the bus, over the freeway guardrail to the railway tracks below, and some were hospitalized for months.

A final report by the California Highway Patrol, issued a year later, said no other vehicles were involved, and that weather and road conditions were not a factor. The CHP said the driver, 69-year-old John Egnew, made an unsafe turn, hitting a guardrail, and was most likely fatigued.

Passengers said they had seen him dozing off and that he had missed several exits along the way.

Local media reported that Egnew had a misdemeanor conviction as a result of a 2005 incident in which he struck an elderly woman, whom he said he never saw, while driving a similar bus in Las Vegas.

Multiple Defendants

Defendants in the actions initially included Orion Pacific, the Brea charter bus company that provided transportation for the group, and the bus driver’s estate. Plaintiffs alleged Egnew lacked the “skills and stamina” to safely complete the trip of over 2,000 miles.

Claims against the U.S.-based defendants were resolved, leaving Capitales Tours, a large French tour operator, and Contact Amerique, a Canadian firm that specializes in international tours.

Those defendants moved to stay or dismiss the action under the doctrine of forum non conveniens. They argued that the case would most appropriately be tried in the plaintiffs’, and Capitales,’ home country.

The plaintiffs responded that litigation in France would likely result in their being awarded less than the $5 million-plus they had accumulated in medical bills, leaving the American doctors and hospitals who treated them unpaid, They also said the case should be tried in California because most of the material witnesses were located here, along with the physical evidence.

A hearing on the motion was held in 2011, and resulted in an order staying the litigation for one year, with the expectation that the suit would then be dismissed if the plaintiffs were able to pursue the merits of their claims in France.

‘Court of First Instance’

During the ensuing two years, the case moved from a “court of first instance” in Paris—which held that under the “lis pendens doctrine,” the case could not go forward there while action was still pending, even if stayed, in California—to a regional appeals court, which reversed and sent the case back to the trial court. The plaintiffs then appealed to France’s highest court, the Court of Cassation.

Meanwhile, the California trial court’s stay order was affirmed by the Sixth District. The trial judge’s holding that the balance of interests weighed in favor of the foreign forum was not an abuse of discretion, the court said.

In August 2013, Capitales filed a motion to dismiss in Monterey Superior Court, citing the ruling of the regional appeals court, and the plaintiffs’ resistance to the French forum. The plaintiffs responded that it was unclear whether they would be able to litigate the merits in France under the appeals court’s ruling—the concept of jurisdiction, they explained, does not translate well between French and English—and that it would be precipitous for the local trial court to act prior to a ruling by the Court of Cassation.

Kingsley, however, ruled the same day. She said the plaintiffs “have had more than two years to pursue their claims in France, the alternative, convenient venue,” that they had “acted to prevent French court jurisdiction,” and that it was “not the court’s duty to assure Plaintiffs an adequate alternative forum to pursue their claims.”

But Justice Franklin Elia, writing for the Court of Appeal, said the trial court, having stayed the action in anticipation of a dismissal based on a determination by the French courts that the plaintiffs’ could litigate the merits there, erred in tossing out the action when that contingency had not yet occurred.

“We do not agree that plaintiffs should be effectively sanctioned for pursuing their appellate remedies in California and for exercising their right to oppose the exercise of jurisdiction in France,” Elia said. “…Because the Cour de Cassation had not yet issued its ruling on jurisdiction at that point, no final decision could be relied on to fulfill the clear prerequisite of the dismissal—that jurisdiction first be established in France. Consequently, the superior court’s dismissal was premature.”

Elia went on to explain that the Court of Appeal had taken notice of a Court of Cassation decision, and of an English translation of that document, submitted by Capitales following that court’s ruling in October of last year. Those documents, however, appear to relate to the issues of whether certain travel agents must indemnify Capitales if it is found liable to the plaintiffs, and to the “lis pendens doctrine,” and do not clearly resolve the issue of jurisdiction, the justice said.

The disputed question of whether the Court of Cassation decision allows the merits to be heard in France cannot be resolved in the present appeal, Elia said. “What is required is a further hearing by the superior court, based on expert opinion or whatever other evidence is necessary to determine the effect of the Cour de Cassation’s decision on the viability of the lawsuit presently in abeyance in Monterey,” he explained.

The case is Auffret v. Capitales Tours, S.A., 15 S.O.S. 4313.