Mohegan Tribe's immunity from state's Dram Shop Act is still an issue

The Mohegan Tribe adopted its own dram shop law in February, a month after settling a case in which it was sued in state court by a Waterford teenager struck by an SUV whose driver had been drinking at a Mohegan Sun bar.

Attorneys for the tribe and the victim, Emily Vanstaen-Holland, agreed on a confidential financial settlement the day before her attorney, Robert Reardon Jr. of New London, was expected to argue before the Connecticut Supreme Court that the tribe is subject to the state's Dram Shop Act. That's the law that makes establishments that serve alcoholic beverages liable for the actions of those they serve.

Reardon may yet get to press his argument.

Several weeks ago, he took over as lead attorney for the family and estate of Elizabeth Durante, the Connecticut College student killed in 2009 when a van in which she was a passenger collided with a car being driven the wrong way near Exit 79A of Interstate 395. The car's driver, Daniel Musser, who had been drinking at a Mohegan Sun bar, pleaded guilty to manslaughter and reckless endangerment charges and is serving a 75-month sentence at the Osborn Correctional Institution in Somers.

A reckless-service-of-alcohol suit Reardon filed on behalf of Durante's parents in New London Superior Court names as defendants the Mohegan Tribal Gaming Authority, the entity that operates the casino. The suit also names Bruce Bozsum, chairman of the Mohegan Tribal Council; Mitchell Etess, the authority's chief executive officer; Gary Crowder, an authority officer and permittee of Ultra 88, the casino nightclub where Musser drank; Patrick Lyons, also a permittee; and Plan "B" LLC, the nightclub's financial backer.

Reardon, in an interview last week, said the suit involves some of the same issues he raised in the Van-staen-Holland case.

"The main issue," he said, "is whether Indian tribes have any jurisdiction with respect to the dispensing of alcohol on Indian reservations. It's our position that if you look at U.S. history and the evolution of tribal sovereignty, they never were allowed sovereignty over the dispensing of alcohol.

"We would have argued that in Vanstaen-Holland and we intend to argue it now," he said.

Another issue, Reardon said, may be the Mohegans' new dram shop law itself and a provision that makes it apply retroactively to cases pending in tribal court, including a negligence claim filed on behalf of the estate of Elizabeth Durante.

"The tribal council had been considering the law for some time," Helga Woods, the Mohegans' attorney general, said Monday. "We've had a torts code that already allowed for reckless-service-of-alcohol claims, and this supplements that."

Woods noted that well before the settlement in the Vanstaen-Holland case, the tribe had argued that the matter shouldn't have been filed in state court.

"This change in our tort code reaffirms that such claims are properly brought in tribal court," she said. "And Superior Court agrees with us."

Woods said the Mohegan dram shop law is "substantially similar" to the state's version. It limits damages paid to those injured by intoxicated persons to "an aggregate amount of $250,000." The Mashantucket Pequot Tribe, which owns Foxwoods Resort Casino, previously enacted a dram shop law of its own.

The three suits - two in state court and one in tribal court - brought over the Durante death are among more than a half-dozen filed in connection with the crash that took her life. The first Durante suit, filed in 2009 against Lyons, the nightclub permittee, and Plan "B," the nightclub's backer, has been combined with three others on the state's Complex Litigation Docket. Cases on the docket typically involve multiple litigants, complex legal issues or claims for damages that could total millions of dollars.

The plaintiffs in the three other cases include survivors injured in the crash: Faheem Muhammad of Groton, the driver of the van in which they were riding; Jessica Gordon and Laura Whitelaw, two Conn College students who are suing Musser, the wrong-way driver, in addition to the nightclub; and Charles Gartman, another student.

b.hallenbeck@theday.com

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