Indian Tribe's Sovereign Immunity Limits Waived by Insurance if Claimant
Complies with Waiver Requirements
The Seminole Tribe of Florida ("the Tribe") appealed an order denying
its motion to dismiss based on sovereign immunity. The trial court
rejected the Tribe's contention that Jose Webster did not comply with
the terms of the sovereign immunity waiver contained in the 2010 Gaming
Compact (the Compact). The Compact required, among other conditions,
that the Tribe and its insurance carrier have one year to resolve a
claim after a Patron gives notice of the claim, and if the claim is not
settled in that time, the Patron may file suit.
In Seminole Tribe Of Florida, d/b/a Seminole Gaming v. Jose Webster, No.
4D2022-3448, Florida Court of Appeals, Fourth District (September 13,
2023) the Tribe asserted in the motion to dismiss that the defendant
failed to comply with the required conditions because he sued the Tribe
within one year of having given written notice of the underlying claim.
The trial court denied the motion, because the last of three variations
of the plaintiff's complaint filed would have complied with the Compact.
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. Further, a waiver must be
strictly construed with any ambiguities being resolved against waiver.
Webster was a patron at the Seminole Hard Rock Hotel & Casino
Hollywood (the "Casino") in September 2019. He claims the Tribe was
negligent in failing to protect him from criminal acts which allegedly
occurred at the Casino during his visit.
In January 2020, Webster timely provided written notice of his claim to
the facility. Two months later, Webster sued "Seminole Hard Rock
Entertainment, Inc. d/b/a Seminole Hard Rock Casino." The proper
defendant was the "Seminole Tribe of Florida d/b/a Seminole Hard Rock
Hotel &Casino-Hollywood. The trial court denied the Tribe's motion
to dismiss without prejudice.
DISCUSSION
The first amended complaint and second amended complaint named the
Tribe, albeit each stating a different fictitious name. Those complaints
alleged the same tort cause of action against the Tribe. Even if the
fictitious name may be in error, the fact remains that the real party in
interest, and the proper defendant, is the Tribe.
The Tribe contends that Webster failed to comply with the Compact's
Section VI.D.4. by filing the first amended complaint within the
one-year pre-suit period set by the Compact, and Webster's failure to
strictly follow the Compact's procedures bars his claim.
The record does not include proof that the Tribe responded to Webster's
claim within thirty days of his written notice. Therefore, although
Webster's first amended complaint commenced suit against the Tribe
within one year of his notice of claim his original suit did not.
For the foregoing reasons, the appellate court reversed the order
denying sovereign immunity and remand for further proceedings.
ZALMA OPINION
Sovereigns, like the tribe can only be sued if the sovereign entity
agrees. The tribe agreed to waive the immunity if certain conditions
were met. Webster failed to meet the requirements of the waiver compact
and, as a result, he could not sue as he did. The tribe had insurance
and he needed to provide the insurer with the time and opportunity to
settle his claim. By prematurely suing he was unable to take advantage
of the waiver.
(c) 2023 Barry Zalma & ClaimSchool, Inc.