Fridge Const. v. FED. EMERGENCY MGT. AGENCY

• Decision Date: 17 September 1991
• Docket Number: Civ. A. No. S88-0472(G).
• Citation: 797 F. Supp. 1321
• Parties: FRIDGE CONSTRUCTION COMPANY, INC., and Johnny F. Smith Truck and Dragline Service, Inc., a Joint Venture, Plaintiffs, v. The FEDERAL EMERGENCY MANAGEMENT AGENCY (the United States), Defendant/Third-Party Plaintiff/Cross-Claim Plaintiff. The CITY OF PASCAGOULA, MISSISSIPPI, and the City of Ocean Springs, Mississippi, Defendants/Cross-Claim Defendants, v. STATE OF MISSISSIPPI, Third Party Defendant.
• Court: U.S. District Court — Southern District of Mississippi

797 F. Supp. 1321

FRIDGE CONSTRUCTION COMPANY, INC., and Johnny F. Smith Truck and Dragline Service, Inc., a Joint Venture, Plaintiffs, v. The FEDERAL EMERGENCY MANAGEMENT AGENCY (the United States), Defendant/Third-Party Plaintiff/Cross-Claim Plaintiff.

The CITY OF PASCAGOULA, MISSISSIPPI, and the City of Ocean Springs, Mississippi, Defendants/Cross-Claim Defendants, v. STATE OF MISSISSIPPI, Third Party Defendant.

Civ. A. No. S88-0472(G).

United States District Court, S.D. Mississippi, S.D.

September 17, 1991.

Samuel C. Kelly, William R. Purdy, Kent McDaniel, Jackson, Miss., for plaintiffs.

Robert E. Sanders, Jackson, Miss., for State of Miss.

Crockett Lindsey, Donald M. Waits, Asst. U.S. Atty., Biloxi, Miss., for FEMA.

Melvin Mitchell, Pascagoula, Miss., for City of Pascagoula.

Karl Wiesenburg, Pascagoula, Miss., for City of Pascagoula, City of Ocean Springs.

Oscar R. Jordan, Ocean Springs, Miss., William T. Reed, Pascagoula, Miss., for City of Ocean Springs.

BENCH OPINION

GEX, District Judge.

This cause came on for trial before the Court without a jury on April 22, 1991. The Court, having fully considered the testimonial and documentary evidence presented by both parties at trial, the arguments of counsel, and the applicable law, and being otherwise fully advised in the premises, makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure:

Findings of Fact

I. Introduction

After teasing the Mississippi Gulf Coast in the late summer of 1985, Hurricane Elena approached the western coast of Florida. Then, Elena abruptly departed Florida's waters for the Mississippi coast again. Finally, on September 2, 1985, Elena struck the Mississippi coast concentrating its fury on Jackson and Harrison Counties. Fortunately, Elena's impact was not preceded by the deadly tidal surge which ordinarily accompanies such storms. Nevertheless, Elena's high winds and tornadoes spawned by the ferocious storm did do substantial damage. However, the plaintiff's suffering did not begin until after the cleanup was underway.

II. Federal Emergency Management Agency's Initial Involvement

This litigation arises out of federal, state, and local governmental efforts to respond to Hurricane Elena. Paul Hall has held the position of Chief of Disaster Assistance Program Division for the Southeast Region since 1981. Hall stated that in 1985, he had a public assistance officer, Mel Schneider, and an individual assistance officer. According to Hall, Schneider's responsibilities include coordinating and providing assistance to communities, local governments, and state governments. Hall further testified that Schneider normally has four full-time employees and that reservists, disaster assistance employees (DAE), are activated when disaster assistance is needed. After awakening one morning to learn that Elena had landed in Mississippi, Hall and Schneider stated that they and Mr. Polney, another Federal Emergency Management Agency (FEMA) employee, drove to the Mississippi coast where they proceeded along U.S. Highway 90 from Pascagoula to Hancock County to survey the damage. Hall testified he contacted his national office and informed them of the damage. According to Hall, he contacted his own office in Atlanta and requested additional personnel. Hall said these persons were directed to perform a "windshield" survey in order to determine whether or not the damage was of such severity and magnitude that it was beyond the capability of the local governments to recover in an effective period of time. Hall described a "windshield" survey as consisting of observations of debris while driving down the street. Schneider said that he conducted a "windshield" survey of Jackson County. Hall testified that these "windshield" surveys revealed damage so severe the local governments could not handle it. He informed his national office of the results of these initial surveys who, in turn, notified the President of the United States.

While awaiting word form the President, Hall discussed the organizational structure with the state officials in Mississippi and potential sites for disaster application centers. Subsequently, the President declared Jackson County a major disaster area pursuant to the Disaster Relief Act of 1974, as amended, 42 U.S.C. §§ 5121, et seq. (the Act).

Pursuant to the Presidential declaration, FEMA and the State of Mississippi entered into a letter agreement (the Agreement) dated September 5, 1985, with respect to this disaster relief. (Exhibit P-10). The Agreement provided that FEMA was to pay 75 percent of the cost for the debris removal; the State of Mississippi was to contribute 12.5 percent; and the cities of Pascagoula and Ocean Springs (the Cities) were to pay the remaining 12.5 percent of the cost for their respective areas. (Exhibit P-10, para. 3). The Agreement declared that "the Director of the Federal Emergency Management Agency (FEMA) or his Delegate shall make available such amounts of funds as he finds necessary for Federal disaster sic assistance within the limits of such funds available from" Congress and that "the maximum amount to be advanced on each project application will be determined by the FEMA Regional Director having responsibility for such actions." (Exhibit A, paras. 1 and 3). The Agreement further provided for both public and individual assistance programs for Jackson County. (Id. at para. 5). One of the types of public assistance programs was debris removal funding, which is authorized by § 403 of the Act (42 U.S.C. § 5173).

III. The Initial Meeting

Hall explained that he served as both the federal coordinating officer (FCO) and the disaster recovery manager (DRM) for the Hurricane Elena disaster assistance. Hall said that his primary duty was representing the President for the evaluation of disaster damages. Pursuant to that duty, he stated that his first task was to conduct a meeting with applicants and local governmental officials during which he explained the various programs along with their eligibility requirements. He also requested information on the categories and magnitude of storm damage to roads, parks, utilities, and buildings during this meeting. At the initial meeting in Jackson County, Hall and Schneider testified that Schneider instructed the local officials on their eligibility for debris removal and told them that they had the option of performing the debris removal themselves or of contracting for the work with private contractors. According to Hall, the state and local authorities were required to identify the types of damage by filing a "Notice of Interest" form.

IV. The Estimates

Hall said that the next step in the disaster assistance process was for a survey team to estimate the quantity of debris and wreckage in Jackson County. These survey teams consisted of a federal, state, and local governmental representative. The federal representatives were primarily from FEMA although Hall testified that some employees from the United States Army Corps of Engineers were used.

Hall stated that it was Schneider's responsibility to brief the survey teams on the applicable laws and regulations. Schneider stated that he met individually with teams of six to ten engineers. Schneider also said that these engineers were experienced in the removal of debris and the estimation of quantities of debris. Schneider testified that they separated the county into its separate entities and he next directed the federal engineers to meet with the local and state representatives before conducting the inspection of the debris. Schneider stated that the state representatives were engineers and the local representative was either a county or a city engineer.

Hall said that the team members are required to execute damage survey reports (DSR). Hall testified that the purpose of the DSR is to attempt to quantify the amount of the debris to facilitate the determination of the cost of removal of the debris. Schneider said that he then met with the survey teams and explained what they should look for and how to fill out the DSR forms. Schneider testified that he directed the teams to travel along every street to determine the quantity of debris located on the street at that time and how much debris would eventually be brought to the streets from the side yards, backyards, and alleys. Schneider said that he also told them to attach their sketches to the DSR, to show any projections they had and the basis for any projections. According to Schneider, he then discussed with the surveyors the estimating process in general and noted that the surveyors typically estimate in ten cubic yard increments. Schneider stated that it took the teams about a week to complete the survey of all of the communities in Jackson and Harrison Counties.

Taylor Morgan "Slim" Bondurant, a FEMA reservist (a part-time FEMA employee who is called into active duty during disasters), testified that he was a member of one the survey teams and he participated in the survey of areas in Jackson County, Harrison County, Moss Point, Pascagoula, and Gulfport with the primary location of his work being in Jackson County and Moss Point. Bondurant stated that he had 15 years of experience in the estimation of debris. He said that his team began the estimating process soon after the storm hit and they traveled through their designated areas counting the cubic yards of the debris along the roads, in yards, and behind houses. Bondurant further stated that they each prepared an estimate, averaging their estimates to derive their final figure for the DSR. Bondurant explained that no one on his team disagreed with the amounts on the DSR forms. After completing the DSRs, Bondurant said he passed them along to Schneider.

Bondurant testified that in preparing the DSRs, he would walk the ditches and drive the streets estimating the amount of the debris while estimating the cost of equipment ...