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 recently ruled that commercial fishermen may 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 also 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.
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.
Curd’s Claim
Curd and the other fishermen alleged 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. 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 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.
A trial court concluded that the language in Chapter 376, Florida’s oil spill law, did not permit a claim since the fishermen did not own any real or personal property damaged by the pollution, nor did they own the fish. The trial court also ruled that the economic loss rule blocked their claim.
The fishermen appealed to the Second District court but fared no better there.
But the Supreme Court said the lower courts erred in a number of respects. The high court said they failed to acknowledge language in Chapter 376, which clearly allows any person to recover for damages suffered as a result of pollution. 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 lists the defenses to causes of action 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.
“There is nothing in these statutory provisions that would prevent commercial fishermen from bringing an action pursuant to Chapter 376,” the court said.
The Second District also barred the fishermen’s claims because, it said, “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. The court, citing rulings by several other states, 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 and the state’s licensing of the fishermen created an economic expectancy. Mosaic owed a duty of care to the commercial fishermen, the court said.
“[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.