Seminole Tribe of Fla. v. Manzini

• Docket Number: 4D22-3077
• Decision Date: 07 June 2023
• Parties: SEMINOLE TRIBE OF FLORIDA, Petitioner, v. NICOLAS A. MANZINI, Respondent.
• Court: Florida District Court of Appeals

1

SEMINOLE TRIBE OF FLORIDA, Petitioner, v. NICOLAS A. MANZINI, Respondent.

No. 4D22-3077

Florida Court of Appeals, Fourth District

June 7, 2023

Not final until disposition of timely filed motion for rehearing.

Petition for Writ of Prohibition to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michele Towbin-Singer, Judge; L.T. Case No. CACE21-019185.

Mark D. Schellhase, Jordan S. Kosches, and Emily L. Pineless of GrayRobinson, P.A., Boca Raton, for petitioner.

Nicolas A. Manzini, West Miami, pro se.

CONNER, J.

Petitioner Seminole Tribe of Florida (the "Seminole Tribe" or the "Tribe"), petitions for a writ of prohibition to prohibit the trial court from proceeding further with a negligence action filed against it, asserting sovereign immunity. After a hearing on the Seminole Tribe's motion to dismiss based on sovereign immunity, the trial court entered an order abating the negligence action until a specific date, rather than dismissing the action.^[1] Subsequently, the trial court stayed the abatement order pending this Court's review. We explain our reasoning in granting the petition.

Background

As a federally recognized Indian tribe, the Seminole Tribe is entitled to sovereign immunity over all claims unless such immunity is abrogated by Congress or waived by the Seminole Tribe. In 2010, the Seminole Tribe entered a gaming compact with the State of Florida ("the Compact") that provides a limited waiver of sovereign immunity for individuals claiming to have been injured at one of the Seminole Tribe's gaming facilities if claimants follow the Compact's specific procedures.

The Compact's Section VI.D. pertains to tort remedies for patrons injured at a Seminole Tribe casino. It provides:

1. A Patron who claims to have been injured after the Effective Date at one of the Tribe's Facilities where Covered Games are played is required to provide written notice to the Tribe's Risk Management Department or the Facility, in a reasonable and timely manner, but in no event later than three (3) years after the date of the incident giving rise to the claimed injury occurs, or the claim shall be forever barred.

2. The Tribe shall have thirty (30) days to respond to a claim made by a Patron. If the Tribe fails to respond within thirty (30) days, the Patron may file suit against the Tribe. . . .

3. Upon receiving written notification of the claim, the Tribe's Risk Management Department shall forward the notification to the Tribe's insurance carrier. . . .

4. The insurance carrier will handle the claim to conclusion. If the Patron and the Tribe and the insurance carrier are not able to resolve the claim in good faith within one (1) year after the Patron provided written notice to the Tribe's Risk Management Department or the Facility, the Patron may bring a tort claim against the Tribe in any court of competent jurisdiction . . . . A Patron's notice of injury to the Tribe pursuant to Section D.1. of this Part and the fulfillment of the good faith attempt at resolution pursuant to Sections D.2. and 4. of this Part are conditions precedent to filing suit.

5. For tort claims of Patrons made pursuant to Section D. of this Part, the Tribe agrees to waive its tribal sovereign immunity to the same extent as the State of Florida waives its sovereign immunity, as specified in sections 768.28(1) and (5), Florida Statutes . . . .

6. Notices explaining the procedures and time limitations with respect to making a tort claim shall be prominently displayed in the Facilities, posted on the Tribe's website, and provided to any Patron for whom the Tribe has notice of the injury or property damage giving rise to the tort claim. Such notices shall explain the method and places for making a tort claim, including where the Patron must submit the form, that the process is the exclusive method for asserting a tort claim arising under this section against the Tribe, that the Tribe and its insurance carrier have one (1) year from the date the Patron gives notice of the claim to resolve the matter and after that time the Patron may file suit in a court of competent jurisdiction, that the exhaustion of the process is a prerequisite to filing a claim in state court, and that claims which fail to follow this process shall be forever barred.

(Emphasis added).

Nicolas Manzini (the "respondent") reported his initial claim to the Seminole Tribe in August 2021, followed in September 2021 by a notice using a Compact-approved claim form. The respondent attached a draft complaint to his claim form notice, seeking damages and declaratory and injunctive relief related to two causes of action under the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA") and the Florida Civil Rights Act ("FCRA").

The Seminole Tribe forwarded the claim form to its insurance carrier. The insurance carrier denied the claim in October 2021, prompting the respondent to file suit four days later, asserting the same two causes of action alleged in the draft complaint attached to the Compact claim form.^[2]

In February 2022, the respondent filed with the Seminole Tribe a Compact tort notice form with an addendum alleging that the Seminole Tribe had not been following COVID-19 safety protocols since May 2021, and further alleging:

[T]he Tribe has continued to falsely advertise its so-called COVID-19 "Safe and Healthy" program which bills itself as providing gaming patrons with "good clean fun" - an illusory promise that endangers patrons like me with pre-existing health conditions with a reckless exposure to the COVID-19 virus. This is a violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) which is nothing more and nothing less than a codification of Florida tort law.

On February 25, 2022, the Tribe acknowledged receipt of the amended notice and advised it would review the allegations.

Shortly after filing his initial complaint, the respondent filed an amended complaint, which the Seminole Tribe moved to dismiss. The trial court granted the motion to dismiss the amended complaint, dismissing the FDUTPA count with prejudice but allowing the respondent to file an amended FCRA count.

In June 2022, the respondent filed his second amended complaint. Therein, the respondent reasserted his FCRA count and added two additional causes of action: one for common law negligence for having contracted COVID-19 due to an exposure at the Seminole Tribe's casino, and the other for intentional infliction of emotional distress. Before the hearing on the motion to dismiss, the respondent voluntarily dismissed his FCRA count.

The trial court initially granted the motion to dismiss the second amended complaint orally, concluding the count for intentional infliction of emotional distress failed to state a cause of action and the common law negligence claim was premature and barred by sovereign immunity. However, the respondent sought reconsideration before the trial court entered a written order. After entertaining further argument, the trial court maintained its ruling as to the intentional infliction of emotional distress count but reversed its decision to dismiss the common law negligence count as barred by sovereign immunity.

The trial court concluded the negligence count was prematurely filed. Thus, rather than dismiss the count, the trial court decided to abate the negligence count for the remainder of the one-year period starting on February 21, 2022, when the respondent provided written notice of his COVID-19 claim to the Seminole Tribe. Subsequently, the trial court entered a written order stating proceedings as to the negligence count "will not continue until the Court gives approval to resume hearings upon notice of either party after February 22, 2023."

The Seminole Tribe petitioned this court for a writ of prohibition.

Our Analysis

As a federally recognized Indian tribe, the Seminole Tribe has almost a 200-year experience of a common-law immunity from suit traditionally enjoyed by sovereign powers. Houghtaling v. Seminole Tribe of Fla., 611 So.2d 1235, 1236 (Fla. 1993) (explaining sovereign immunity for Indian tribes dates back to Worcester v. Georgia, 31 U.S. 515, 557 (1832), overruled on other grounds by Nevada v. Hicks, 533 U.S. 353, 361-62 (2001), "in which Chief Justice Marshall stated that the Indian tribes were 'distinct political communities, having territorial boundaries, within which their authority is exclusive....'").

Tribal sovereign immunity "involves complete immunity from suit." Seminole Tribe of Fla. v. Schinneller 197 So.3d 1216, 1219 (Fla. 4th DCA 2016) (quoting Citizens Prop. Ins. Corp. v. San Perdido Ass'n, 104 So.3d 344, 353 n.6 (Fla. 2012)). Otherwise, "the sovereign immunity provided to the tribe is illusory if the tribe is required to defend an action barred by the doctrine." Id. Thus, the Seminole Tribe "is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity[.]" Lewis v. Edwards, 815 So.2d 656, 657 (Fla. 4th DCA 2002) (quoting Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998)).

We have previously explained that "a waiver of sovereign immunity 'cannot be implied but must be unequivocally expressed.'" Seminole Police Dep't. v Casadella, 478 So.2d 470, 471 (Fla. 4th DCA 1985) (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978)). Additionally, any waiver must be "clear, explicit, and unmistakable." Miccosukee Tribe of Indians v. Napoleoni, 890 So.2d 1152, 1153 (Fla. 1st...