Florida Court Says Fishermen Can Sue Polluter; Is BP Next?

With BP’s offshore oil gusher in the Gulf of Mexico as a backdrop, the Florida Supreme Court has ruled that commercial fishermen can sue a company that discharged pollutants into Tampa Bay for lost income and profits even though the fishermen do not actually own any property damaged by the pollution.

Lawyers for the fishermen say the case could set a precedent for future economic damage lawsuits by Floridians against BP for the Deepwater Horizon disaster.

The state’s high court said that commercial fishermen have a right to sue under both statutory law and common law because they have a special protected interest in the marine life that is different from the general public’s interest.

The court further ruled that companies with operations that might affect the waters have an independent duty of care to protect the economic interests of commercial fishermen.

The suit was brought by Howard Curd and other Tampa Bay fishermen against Mosaic Fertilizer, LLC, which owned a phosphogypsum storage area near Archie Creek in Hillsborough County. The storage area included a pond containing hazardous wastewater that was enclosed by dikes.

The Supreme Court opinion, written by Chief Justice Peggy Quince, overruled two lower courts that had denied the fishermen the right to sue. The high court said they misread state law and legislative intent and misapplied the economic loss rule when they ruled against the fishermen.

A lawyer for Curd and the other fishermen, F. Wallace Pope, Jr., of Clearwater, told The Associated Press that the decision sets a precedent for future cases.

“This establishes that under Florida law that commercial fishermen, even though they don’t technically own the fish when they’re swimming around, have a protectable interest in the fish because they’re licensed to go out and catch ’em,” Pope said. “That’s the way they earn a living.”

Pope said the state’s pollution statute is likely to be the focus of any lawsuits in the BP case.

“This is the kind of damage that is covered by that statute,” he said. “All you have to do is prove the event occurred and who did it. You don’t have to prove anything else.”

The state has a formed a special legal team to assist Floridians in recovering economic damages resulting from the April 20 explosion of the BP oil rig.

Lower Courts

The two lower courts had found that both statutory and common law allow only those who suffer property damage or personal injury the right to sue over pollution. The fishermen did not own the fish and could only claim economic harm, these courts said.

Curd and the other fishermen allege that in 2004, both state and county officials warned Mosaic that the wastewater in its containment pond was dangerously close to exceeding the safe storage level and that a 100-foot section of the pond dike was three feet narrower than the minimum required. Only an inch or two of additional rain would raise the pollutants in the pond to the top of the dike, officials told Mosaic. On Sept. 5, 2004, the dike gave way and pollutants were spilled into Tampa Bay.

The fishermen claimed that the spilled pollutants resulted in a loss of underwater plant life, fish, bait fish, crabs, and other marine life. They did not claim an ownership in the damaged marine and plant life, but did claim that the spill damaged the reputation of the fish they were able to catch and sell, causing them to suffer monetary damages.

The fishermen claimed they were entitled to damages on three counts: statutory liability under Florida’s oil spill law, Chapter 376; common law strict liability based upon Mosaic’s use of its property for a hazardous activity; and a claim of simple negligence.

A trial court concluded that the language in Chapter 376 did not permit a claim since the fishermen did not own any real or personal property damaged by the pollution. The trial court also ruled that the economic loss rule blocked claims under negligence and strict liability.

The fishermen appealed the dismissal to the Second District court but fared no better there. The Second District reasoned that an action in common law either through strict liability or negligence was not permitted because the fishermen did not sustain bodily injury or property damage. The strict liability and negligence claims sought purely economic damages unrelated to any damage to the fishermen’s property. Accordingly, Mosaic did not owe the fishermen an independent duty of care to protect their purely economic interests, this court found.

Supreme Court

But the Supreme Court said the lower courts erred in a number of respects. The high court said they failed to acknowledge language in Florida’s oil spill liability law, Chapter 376, which clearly allows any person to recover for damages suffered as a result of pollution. The Supreme Court noted that the statute also allows recovery for damages to “natural resources, including all living things” and not just property. In addition, the statute provides that its provisions should be “liberally construed.”

The Florida statute further specifies the defenses to causes of action to include acts of war, acts by a governmental entity, acts of God, and acts or omissions by a third party, but does not include lack of property ownership. Because the statute does not specifically list the lack of property ownership as a defense, the state’s high court said state lawmakers deliberately omitted it.

“[T]he Legislature has enacted a far-reaching statutory scheme aimed at remedying, preventing, and removing the discharge of pollutants from Florida’s waters and lands. To effectuate these purposes, the Legislature has provided for private causes of action to any person who can demonstrate damages as defined under the statute. There is nothing in these statutory provisions that would prevent commercial fishermen from bringing an action pursuant to Chapter 376,” the court said in summarizing its stand on the statutory right for the fishermen to sue.

Economic Loss Rule

The Supreme Court said that the Second District court also erred when it found that the economic loss rule barred suit in this case. The high court repeated its previous ruling that the economic loss rule in Florida is applicable in only two situations: 1) where the parties are in contractual privity and one party seeks to recover damages in tort for matters arising out of the contract, or 2) where the defendant is a manufacturer or distributor of a defective product which damages itself but does not cause personal injury or damage to any other property.

Neither situation was present in the Curd case, the high court said.

“The parties to this action are not in contractual privity. Moreover, the defendant in this case is not a manufacturer or distributor of a defective product that has caused damage to itself. Rather we have plaintiffs who have brought traditional negligence and strict liability claims against a defendant who has polluted Tampa Bay and allegedly caused them injury. Thus, the economic loss rule does not prevent the plaintiffs from bringing this cause. The plaintiffs’ causes of action are controlled by traditional negligence law, which requires proof of duty, breach, and proximate cause, and by strict liability principles,” the Supreme Court said.

Independent Duty of Care

The Second District also found the fishermen’s claims barred because “Mosaic did not owe an independent duty of care to protect the fishermen’s purely economic interests—that is, their expectations of profits from fishing for healthy fish.”

Here, too, the Supreme Court found error, concluding that Mosaic did indeed owe a duty of care to the fishermen, a duty that was not shared by the public as a whole.

The court agreed with Curd that commercial fishermen fall into a recognized exception to the general rule against recover for purely economic losses when there has been no bodily injury or property damage. The licensed commercial fishermen have a protectable economic expectation in the marine life that qualifies as a property right. Also, the state’s licensing of the fishermen created an economic expectancy.

Other States’ Rulings

The Florida Supreme Court justices cited cases from other states, including one in New York, where commercial fishermen sued General Electric for discharging polychlorinated biphenyls (PCBs) into the Hudson River, after which the state banned the sale of striped bass from those waters. The fishermen claimed that the sale of striped bass accounted for a substantial part of their income and that as commercial fishermen they had a special interest in use of public waters. That special interest, they claimed, was invaded by the defendant’s pollution. The New York court agreed and held that the commercial fishermen did have standing to complain of the pollution of the waters from which they derived their living.

In Arkansas, a fisherman who had permission to fish a section of Bayou Meto, claimed that a powder company had polluted the stream by discharging into it phenolic materials that killed fish, created a rotten egg odor, and made the fish inedible and unsalable. The Supreme Court of Arkansas held that the powder company was liable to the fisherman, reasoning that he had a substantial investment in a business and that it was his only means of livelihood. Therefore, by polluting the water, the powder company prevented the operation of his business, so it became directly liable for any damage to his business and loss of profits.

Additionally, in Oregon, commercial fishermen brought an action against the operators of two plants for discharging pollution into the river. The Supreme Court of Oregon concluded that the commercial fishermen had a cause of action because they had a special interest, distinct from that of the public, in fishing the rivers. The court found a vital distinction between the rights of licensed fishermen who are accustomed to fishing in the river and the rights of other citizens of the state.

The Florida Supreme Court also cited several federal cases in concluding similarly that the Tampa Bay fishermen have a protectable special interest in the marine life, that Mosaic owed a duty of care to the commercial fishermen, and that the fishermen had a cause of action sounding in negligence.

“[T]he discharge of the pollutants constituted a tortious invasion that interfered with the special interest of the commercial fishermen to use those public waters to earn their livelihood. We find this breach of duty has given rise to a cause of action sounding in negligence. We note, however, that in order to be entitled to compensation for any loss of profits, the commercial fishermen must prove all of the elements of their causes of action, including damages,” the high court concluded.

The ruling was unanimous regarding statutory rights of the fishermen; however Justice Ricky Polston in a partial dissent disagreed that they can recover under Florida common law.

Topics Lawsuits Florida Profit Loss Energy Oil Gas Property Pollution