Summary of a Recent
Judicial Development in
Environmental Law

No Private Cause of Action for Fishermen in Water Pollution Case

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Curd v. Mosaic Fertilizer, LLC, 993 So.2d 1078 (Fla. Dist. Ct. App. 2008), the Florida District Court of Appeals, Second District, held that commercial fishermen could not state claims in negligence or strict liability to recover for purely economic losses unrelated to injury to their persons or property.

Background

Commercial fishermen brought a class action lawsuit against Mosaic Fertilizer, claiming that Mosaic's phosphogypsum storage facility polluted the waters of Tampa Bay, reducing the available supply of fish, which in turn damaged their businesses and reduced their income. Id. at 1078-79. They alleged that in the summer of 2004, the Hillsborough County Environmental Protection Commission and the Florida Department of Environmental Protection warned Mosaic that the quantity of wastewater in the storage facility was dangerously close to exceeding the safe storage level and that only an inch or two of additional rain would raise the level of pollutants in the pond to the top of the dike. Id. at 1079. The dike gave way in September 2004, and pollutants were spilled into Tampa Bay, which the fishermen claimed resulted in loss of underwater plant life, fish, bait fish, crabs, and other marine life. Id. The trial court ruled that their claims were not authorized under the economic loss rule, and the fishermen appealed. Id. at 1080.

Arguments

The fishermen argued that Florida's economic loss rule had been limited to situations involving contractual disputes and products liability claims. Id. They also asserted a claim under Florida Statute § 376.313(3), which provides for a private cause of action for pollution. Id. at 1083.

Analysis and Holdings

The court affirmed dismissal of the claims, concluding that the general principle that "recovery in negligence is not usually permitted for purely economic losses unconnected to injury to persons or property" still applied to this situation. Id. Therefore, because the fishermen had no property interest in the fish, the court held that Mosaic did not owe an independent duty of care to protect the fishermen's purely economic interests (their expectation of profits from fishing for healthy fish). Id.

Florida Statute § 376.313(3), a subsection of the chapter regulating discharge of pollutants, authorizes a private cause of action "for all damages resulting from a discharge or other condition of pollution," but the court noted that the issue of the type of damages recoverable under the statute and by whom was unresolved. Id. The fishermen argued that the phrase "all damages" should include economic losses suffered indirectly as a result of the pollution, but the court found that interpretation to be overly broad and explained that it would be difficult to determine at which point damages become too remote. Id. at 1084. The court concluded, "in the absence of express language stating such an intent, we are unable to conclude that the legislature intended the courts to use such an expansive method to measure recoverable damages under this statute." Id. Although it acknowledged that courts in some other states where commercial fishing was a significant part of the local economy have held that commercial fishermen may recover economic losses resulting from oil spills and other major releases of pollutants, the court declined to recognize a special cause of action for fishermen in this situation, reasoning that creating a special cause of action for the narrow subset of the people who are indirectly or remotely injured by pollution would create more problems than it would solve. Id. at 1085-86. The court therefore affirmed the dismissal of the claims. Id. at 1086.

The case was decided on September 17, 2008.