The Supreme Court of Florida Rules That General Maritime Law and Florida State Law Permits Commercial Fishermen To Recover Damages for Economic Losses Caused By Negligent Release of Pollution
In a recent decision from the highest Court in the State of Florida, the Supreme Court of Florida considered two (2) questions certified by the Second District Court of Appeal in Florida and thought to be of great public importance: (1) Does Florida recognize a common law theory under which commercial fishermen can recover for economic losses proximately caused by the negligent release of pollutants despite the fact that the fishermen do not own any property damaged by the pollution?; and (2) Does the private cause of action recognized in Section 376.313, Florida Statutes (2004), permit commercial fishermen to recover damages for their loss of income despite the fact that the fisherman do not own any property damaged by the pollution? In Curd v. Mosaic Fertilizer, LLC, No. SC08-1920 (Fla., June 17, 2010), the Florida Supreme Court answered both questions in the affirmative.
The plaintiffs in Curd were a group of commercial fishermen the caught and sold fish found in Tampa Bay. The defendant, Mosaic, controlled a phosphogypsum storage area, including a pond that contained wastewater from a phosphate plant. The wastewater contained various pollutants and hazardous contaminants, and was enclosed by dikes. On September 5, 2004, the dike gave way and pollutants were spilled into Tampa Bay, allegedly resulting in a loss of underwater plant life, fish, bait fish, crabs and other marine life. Although the fishermen acknowledged that they did not claim an ownership in the damaged marine and plant life, they filed a lawsuit against Mosaic, claiming that the pollution resulted in damage to the reputation of the products they sold. The fishermen alleged three causes of action: (1) statutory liability under § 376.313(3), Florida Statutes (2004); (2) common law strict liability for damages resulting from Mosaic's use of its property for an ultrahazardous activity; and (3) simple negligence. The trial court and the Second District rejected each of the fishermen's claims, finding that strict liability and negligence were not permitted because the fishermen did not sustain property damage; and that § 376.313(3) similarly did not apply because the fishermen did not have a possessory interest in the property damaged by the pollution. Notwithstanding, the Second District certified the questions above to be of great public importance, and the Supreme Court granted review of the action to answer the certified questions.
The Court first considered whether § 376.313(3), Florida Statutes (2004), which permits a private cause of action for any person suffering damages resulting from pollution, allows commercial fishermen to recover damages for loss of income despite not owning any property damaged by the pollution. In reviewing the statute, the Court first looked to its plain language to determine the Legislature's intent in enacting the statute. Looking to the statute itself, which referenced other provisions of the Florida Statutes, the Court found that § 376.313(3) was clear and unambiguous, providing that "nothing . . . prohibits any person from bringing a cause of action . . . for all damages resulting from a discharge or other condition of pollution." The relevant chapter of the Florida Statutes furthered defined "damages" as including "any destruction of the environmental and natural resources, including all living things except human beings, as the direct result of the discharge of a pollutant." § 376.031(5). After determining that the Legislature intended for the statute to be liberally construed, the Court concluded that there was nothing in Chapter 376 of the Florida Statutes that would prevent commercial fishermen from bringing a statutory action.
The Court next considered the question of whether Florida recognizes a common law theory under which commercial fishermen can recover for economic losses proximately caused by the negligent release of pollutants despite the fact that the fishermen do not own any real or personal property damaged by the pollution. The Court first concluded that the economic loss rule, relied on by the courts below, did not prevent the plaintiffs from bringing their action under the circumstances of the case. The Court concluded that the fishermen's causes of action were controlled by traditional negligence law, requiring proof of duty, breach, and proximate cause, and by strict liability principles.
Although the general common law negligence rule is that recovery is not permitted if a plaintiff has not suffered bodily injury or property damage, the fishermen claimed that licensed commercial fishermen have a protectable economic expectation in the marine life similar to a property right. After reviewing decisions of state and federal courts from other jurisdictions in similar situations, the Florida Supreme Court held that Mosaic owed a special duty of care to the fishermen that was not shared by the public as a whole, arising from the nature of Mosaic's business and the special interest of the commercial fishermen in the use of the public waters, and that the fishermen had a cause of action sounding negligence. Mosaic breached this duty by discharging pollutants which interfered with the special interest that the commercial fishermen had to use those waters to earn their livelihood. Accordingly, the Court held that the commercial fishermen had both a statutory and common law cause of action.
Justice Polston, concurring in part and dissenting in part, wrote a separate opinion, disagreeing with the majority's conclusion that commercial fishermen can recover economic losses proximately caused by the negligent release of pollution under Florida common law. In reaching his conclusion, Justice Polston found that commercial fishermen do not have a unique or special interest that creates a duty to protect their purely economic interest in a clean ocean.
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