tampabay.com

Tribe faulted for not warning its casino patrons

A judge says few know that state legal protections don't apply there.

By JEFF TESTERMAN
Published July 5, 2005


TAMPA - For more than 20 years, patrons of the bingo parlors run by the Seminole Tribe of Florida who were somehow injured while waiting for their lucky number to come up routinely hired lawyers and filed negligence suits.

And for more than 20 years, judges around the state routinely threw out the suits, affirming time and time again the tribe's entitlement to sovereign immunity, the principal that American Indian tribes are sovereign nations and immune from prosecution in Florida's courts.

In one of the latest of those opinions, however, an appellate judge has tacked on an unusual admonition to the tribe for failing to warn casino patrons and for relying on sovereign immunity to fight off negligence claims.

Referring to the Seminoles' Hard Rock Casino on Interstate 4, 2nd District Court of Appeal Chief Judge Chris W. Altenbernd wrote in a June 15 opinion, "This casino is not legally in Florida," even though the $100-million facility is advertised as a hotel and casino in Tampa.

"The average tourist has no idea that (his or) her constitutional rights to access to the courts and to trial by jury do not apply to any claims that may arise while (he or) she visits the hotel and casino," Altenbernd wrote. "The tribe itself does not post warnings that its tourist attraction is exempt from these basic Florida constitutional protections."

The chief judge then criticized the tribe's use of immunity to deny negligence claims even when the tribe had appropriate insurance coverage to cover an accident.

"Hopefully," Altenbernd wrote, "the Seminole Tribe of Florida will eventually conclude that this litigation tactic is not the best policy to promote a profitable business."

The appellate opinion came in the case of Angela McCor, a Lakeland resident who claimed in a 2002 suit in Hillsborough Circuit Court that she was struck by a falling chair and suffered foot injuries while visiting the Seminole gambling hall in Tampa.

McCor's suit was handled by the Tampa law firm Maney & Gordon, which seized on the fact that the tribe carried a $1-million liability insurance policy against just such incidents.

McCor's attorneys asked this simple question: If you believe you are absolutely protected from lawsuits by sovereign immunity, why do you purchase liability insurance? The attorneys argued that with the purchase of the policy, the tribe had in effect waived its sovereign immunity.

Attorneys for the Seminole Tribe reasserted the principal of sovereign immunity and asked for the McCor suit to be dismissed. When a lower court refused to throw it out, the tribe appealed to the 2nd District Court of Appeal.

The appellate panel determined that the tribe can only waive its sovereign immunity through a vote by the tribal council. Since no such vote had occurred, the appellate court ruled that the tribe was immune from the McCor suit and ordered the Hillsborough court to dismiss it.

But Altenbernd's comments added impetus to the quest by personal injury lawyers to take the tribe to court.

"The judge felt compelled to uphold immunity, but he also was dismayed about their business practices," said Jack Gordon of Many & Gordon. "He reminds that as you step onto the Seminole property, you are stepping onto a foreign land where the protections of federal and state law no longer apply."

The precedent for the tribe's protection from suits derives from a 1990 case involving Carole Houghtaling, a Tampa resident who said she fell and hurt her back outside the Seminole gambling hall in Tampa. Houghtaling, a retiree with no medical insurance and a grandchild to support, appealed her case all the way to the Florida Supreme Court, which ruled in 1993 that the tribe was protected from the claim by its sovereign status.

Since then, sovereign immunity has discouraged suits from a variety of casino patrons - people who slipped and fell or felt they were falsely arrested by Seminole police officers, even one woman who alleged she had been deprived of a $64,000 bingo jackpotby casino employees who unfairly disqualified her.

Altenbernd, then new to the appellate court, weighed in during the Houghtaling case two decades ago, according to Seminole attorney Don Orlovsky.

"He said then that this gives new meaning to the term "tourist trap,"' Orlovsky said.

What has gone unnoticed, said Orlovsky, is that the tribe does pay meritorious claims, despite its ability to use sovereignty to fend off any negligence suit.

One such case, handled by Maney & Gordon, involved Carmine and Susan Ardolino, New Jersey residents visiting the Seminoles' Tampa casino when Mrs. Ardolino tripped over a parking bumper in the tribe's just-completed parking garage.

Mrs. Ardolino, 54, needed knee surgery. The first lawyer she called told her, "I'm not getting involved; you can't sue the Indians," she said.

But after Maney & Gordon sued, the tribe ended up writing her an $80,000 check in an out-of-court settlement, Mrs. Ardolino said.

Orlovsky also deflected criticism from Altenbernd that the tribe fails to warn patrons about its immunity from suits.

"The state of Florida has sovereign immunity, and it doesn't warn people," Orlovsky said. "And the tribe has spent a huge amount of money to make a safe and enjoyable experience for everyone who visits its casinos."

Historically, the federal government granted sovereign immunity to American Indian tribes in part because of their impoverished condition and the threat to endangered cultures. Orlovsky said in the Houghtaling case that the Seminoles needed to protect their immunity because of "scarce tribal resources that could become even more scarce through litigation."

But with the advent of Indian gambling enterprises, fortunes have changed. With video slot machines, bingo and poker games, the Seminoles' Hard Rock casinos in Tampa and Hollywood, Fla., were seeing net gambling revenue of $50-million a month by late last year. The tribe is now in negotiations with the state to add even more lucrative Las Vegas-style games to its casino repertoire.

"When they got sovereign immunity," said Gordon, "no one envisioned they'd be taking wheelbarrows of cash away the way they are now."

--Jeff Testerman can be reached at 813 226-3422 or by e-mail at testerman@sptimes.com