Seminole Tribe of Florida v. Manzini

Manzini is the plaintiff in a negligence action against the Seminole Tribe of Florida. The tribe is federally recognized, so it is entitled to sovereign immunity over all claims that are not abrogated by CONGRESS or waived by the tribe itself.

In 2010, the tribe entered into a gaming compact with the State of Florida wherein the tribe did enter into a limited waiver of sovereign immunity for claims alleging injury at a gaming facility, but potential plaintiffs have to follow a strict set of procedures laid out in the compact.

The first requirement is that a patron who claims to have been injured at one of the tribe’s casinos must provide written notice to the tribe’s risk management department or the facility where the injury occurred in a reasonable and timely manner, but in no event later than three years after the incident.

The compact gives the tribe 30 days to respond to notice, and if there is no response, the patron may file suit. The tribe is required to provide the notice to its insurance carrier, which then handles the claim. If the patron and insurance company cannot resolve the claim within one year after notice of the claim, the patron may bring suit. The notice and one year of good faith attempt at resolution are conditions precedent to filing suit.

The tribe agreed to waive its sovereign immunity to the same extent that the State of Florida does so under section 768.21(1) and (5).

Mr. Manzini notified the tribe of a claim in August 2021 and then he did so again using the tribe’s approved form in September 2021. He attached a drafted complaint alleging Florida Deceptive and Unfair Trade Practices Act and Florida Civil Rights Act claims.

The tribe forwarded the notice to its insurance carrier. The carrier denied the claim in October 2021. Manzini filed suit four days later.

In February 2022, Manzini filed another notice of claim with the tribe alleging that the tribe had not been following COVID-19 protocols and alleging false advertising for alleging a “safe and healthy” program of “good clean fun,” which Manzini called an illusory promise that was a deceptive and unfair trade practice. On February 25, 2022, the tribe acknowledged receipt and said it would review the allegations.

Manzini amended his complaint, and the tribe moved to dismiss. The trial court granted the motion to dismiss the deceptive trade practices (“FDUTPA”) count with prejudice, but allowed Manzini to file an amended Florida Civil Rights Act count.

In June, Manzini filed the second amended complaint. He reasserted the civil rights claim and added two additional causes of action—one for common law negligence for having contracted COVID-19 at the tribe’s casino, and the other for intentional infliction of emotional distress. Before the hearing on the motion to dismiss, Manzini dismissed the civil rights claim, leaving intact only the two claims raised for the first time in the second amended complaint.

Manzini moved for reconsideration before a written order was entered. After hearing further arguments, the trial court maintained the ruling on emotional distress, but the trial court granted reconsideration and decided that even though the negligence count was premature, it would abate it instead of dismissing it. The trial court held that the count would be abated for the remainder of the one-year period that started on February 21, 2022, when Manzini had provided written notice to the tribe of that claim.

The tribe filed a petition for a writ of prohibition. The DCA began by recounting the long history of sovereign immunity enjoyed by federally-recognized Indian tribes including canons of construction that weigh heavily against waiver of sovereign immunity unless that waiver is unequivocal with any ambiguities being construed in favor of the tribe.

The February 2022 notice of claim alleged false advertising about COVID-19 safety, but it did not allege that Manzini became ill. He had not yet contracted COVID-19 at the time of the February 2022 notice. There was no pre-suit notice of the claim of illness. Without strictly following the notice procedures, sovereign immunity was never waived.

Manzini’s argued that sovereign immunity could not be decided by a motion to dismiss because it involves matters outside the four corners of the complaint. The DCA expressly stated that sovereign immunity is “properly decided by a motion to dismiss and it is proper to consider matters outside the four corners of the complaint” because tribal sovereign immunity is a question of subject matter jurisdiction.

As a procedural note, because the trial court abated and did not actually deny the motion to dismiss, there was no jurisdiction to entertain the merits as an authorized appeal of a motion to dismiss on sovereign immunity grounds. Thus, the petition for a writ of prohibition was proper.

The DCA granted the petition, stating:

Having determined the record does not show the Seminole Tribe waived sovereign immunity as to the respondent’s common law negligence count, we grant the petition and prohibit the trial court from proceeding further in the suit below as to that count or any amended count asserting negligence regarding COVID-19. We do not address in this opinion the Seminole Tribe’s argument that a negligence suit related to the respondent’s claim that he was injured by contracting COVID-19 at a facility operated by the Tribe is forever barred.