Curd v. Mosaic Fertilizer LLC

• Decision Date: 17 June 2010
• Docket Number: No. SC08-1920.,SC08-1920.
• Citation: 39 So.3d 1216
• Parties: Howard CURD, et al., Petitioners,v.MOSAIC FERTILIZER, LLC, Respondent.
• Court: Florida Supreme Court

39 So.3d 1216

Howard CURD, et al., Petitioners,v.MOSAIC FERTILIZER, LLC, Respondent.

No. SC08-1920.

Supreme Court of Florida.

June 17, 2010.

F. Wallace Pope, Jr. of Johnson, Pope, Bokor, Ruppel, and Burns, LLP, Clearwater FL, and Andra T. Dreyfus, Clearwater, FL, for Petitioners.

David Barnett Weinstein and Kimberly S. Mello of Greenberg Traurig, P.A., Tampa, FL, and Arthur J. England, Jr. of Greenberg Traurig, P.A., Miami, FL, for Respondent.

Charles W. Hall and Mark D. Tinker of Banker Lopez Gassler, P.A., St. Petersburg, FL, and Paul M. Smith and Michelle A. Groman of Jenner and Block, LLP Washington, DC, on behalf of General Dynamics Corporation and General Dynamics Land Systems, Inc., as Amicus Curiae.

QUINCE, C.J.

This cause is before the Court for review of the decision of the Second District Court of Appeal in Curd v. Mosaic Fertilizer, LLC, 993 So.2d 1078 (Fla. 2d DCA 2008). In its decision the district court ruled upon the following questions, which the court certified to be of great public importance:

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?

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 FISHERMEN DO NOT OWN ANY PROPERTY DAMAGED BY THE POLLUTION?

Id. at 1079. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons explained below, we answer the questions in the affirmative and quash the decision below.

FACTS AND PROCEDURAL HISTORY

In Curd, 993 So.2d 1078, the Second District Court of Appeal summarized the facts as follows:

According to the allegations in [Howard Curd and several other commercial fishermen's (the fishermen) ] complaint, [Mosaic Fertilizer, LLC (Mosaic) ] owned or controlled a phosphogypsum storage area near Archie Creek in Hillsborough County. The storage area included a pond enclosed by dikes, containing wastewater from a phosphate plant. This wastewater allegedly contained pollutants and hazardous contaminants.

The fishermen alleged that in the summer of 2004, the Hillsborough County Environmental Protection Commission and the Florida Department of Environmental Protection both warned Mosaic that the quantity of wastewater in the storage facility was dangerously close to exceeding the safe storage level. According to the complaint, on August 10, 2004, the Department of Environmental Protection warned Mosaic that a 100-foot section of the pond dike was three feet narrower than the minimum required width of 18 feet. It warned that only an inch or two of additional rain during the tropical season would raise the level of pollutants in the pond to the top of the dike. On September 5, 2004, the dike gave way and pollutants were spilled into Tampa Bay.

The fishermen claim that the spilled pollutants resulted in a loss of underwater plant life, fish, bait fish, crabs, and other marine life. They do not claim an ownership in the damaged marine and plant life, but claim that it resulted in damage to the reputation of the fishery products the fishermen are able to catch and attempt to sell. At least implicitly, they are alleging monetary damages in the nature of lost income or profits.

The complaint included three counts. Count 1 attempted to allege a claim for statutory liability under section 376.313(3), Florida Statutes (2004). Count 2 alleged common law strict liability based upon damages resulting from Mosaic's use of its property for an ultrahazardous activity. See, e.g., Cities Serv. Co. v. State, 312 So.2d 799 (Fla. 2d DCA 1975). Count 3 alleged a claim of simple negligence. The trial court concluded that the language in chapter 376 did not permit a claim by these fishermen for monetary losses when they did not own any real or personal property damaged by the pollution. After initially permitting the fishermen to proceed on their claims of negligence and strict liability, the trial court ultimately ruled that these claims were not authorized under the economic loss rule. The fishermen then appealed the dismissal of their entire fourth amended complaint to [the Second District].

Curd, 993 So.2d at 1079-80.

On appeal, the Second District affirmed the trial court's order dismissing Curd's proposed class action lawsuit against Mosaic Fertilizer. See Curd, 993 So.2d at 1079. The court held that under traditional principles of negligence the fishermen failed to state a cause of action. See id. at 1083. The court 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, the court further reasoned that Mosaic did not owe the fishermen an independent duty of care to protect their purely economic interests. See id. at 1082-83. Additionally, in evaluating the fishermen's statutory liability claim under section 376.313(3), the court concluded that there is no Florida precedent that permits a recovery for damages under section 376.313(3) when the party seeking the damages does not own or have a possessory interest in the property damaged by the pollution. See id. at 1084. Further, the court said that there is no express language from the Legislature stating that it intended the statute to create a wide array of claims by people indirectly affected by pollution. See id. The court also declined to read into the statute a legislative intent in section 376.313(3) to allow such economic claims based on the fishermen's unique relationship with the fish or based on the fact that the fishermen hold commercial fishing licenses. Moreover, the court declined to recognize such a right as a matter of tort law. See id. at 1085. The court was unconvinced that a special theory should be established under the common law for a narrow subset of the people who are indirectly or remotely injured by pollution. See id. at 1085-86.

Pursuant to article V, section 3, subsection (b)(4) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), the Second District certified the questions above to be of great public importance. See Curd, 993 So.2d at 1079. We granted review to answer the certified questions.

ANALYSIS

Statutory Cause of Action

We first address whether the private cause of action recognized in section 376.313(3), Florida Statutes (2004),¹ allows commercial fishermen to recover damages for their loss of income despite the fact that the fishermen do not own any property damaged by the pollution. Our interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review. See Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006); see also B.Y. v. Dep't of Children & Families, 887 So.2d 1253, 1255 (Fla.2004) (noting that the standard of appellate review on issues involving the interpretation of statutes is de novo).

When construing a statute, we strive to effectuate the Legislature's intent. See, e.g., Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla.2006) (“We endeavor to construe statutes to effectuate the intent of the Legislature.”); State v. J.M., 824 So.2d 105, 109 (Fla.2002) (noting that legislative intent is the polestar that guides a court's statutory construction analysis). To determine that intent, we look first to the statute's plain language. See Borden, 921 So.2d at 595. We have held that “when the statute is clear and unambiguous, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Id. (quoting Daniels v. Fla. Dep't of Health, 898 So.2d 61, 64 (Fla.2005)). In reaching our conclusion that chapter 376, Florida Statutes (2004), allows a cause of action by these plaintiffs, we have construed several provisions of the chapter in pari materia and given effect to the various sections. See E.A.R. v. State, 4 So.3d 614, 629 (Fla.2009); McDonald v. State, 957 So.2d 605, 610 (Fla.2007); Zold v. Zold, 911 So.2d 1222, 1229-30 (Fla.2005).

Section 376.313(3), Florida Statutes (2004), provides as follows:

Except as provided in s. 376.3078(3) and (11) nothing contained in ss. 376.30-376.319 prohibits any person from bringing a cause of action in a court of competent jurisdiction for all damages resulting from a discharge or other condition of pollution covered by ss. 376.30-376.319. Nothing in this chapter shall prohibit or diminish a party's right to contribution from other parties jointly or severally liable for a prohibited discharge of pollutants or hazardous substances or other pollution conditions. Except as otherwise provided in subsection (4) or subsection (5) in any such suit, it is not necessary for such person to plead or prove negligence in any form or manner. Such person need only plead and prove the fact of the prohibited discharge or other pollutive condition and that it has occurred. The only defenses to such cause of action shall be those specified in s. 376.308.

(Emphasis added.) The Second District Court of Appeal provided the following legislative history regarding section 376.313(3):

Chapter 376 regulates the discharge of pollution. The first portion of this chapter was enacted in 1970 as the “Oil Spill Prevention and Pollution Control Act.” See ch. 70-244, Laws of Fla. The legislature expanded the reach of chapter 376 when it enacted the Water Quality Assurance Act of 1983, ch. 83-310, Laws of Fla. Section 84 of chapter 83-310 effectively created a private cause of action for damages caused by pollution. Ch. 83-310, § 84, at 1885, Laws of Fla.

This provision is currently codified in section 376.313(3).

Curd, ...