Strictly speaking, does F.S. [section]376.313(3) create duty to everybody, everywhere?, Part I.

• Author: Ansbacher, Sidney F.
• Position: Environmental and Land Use Law

On June 17, 2010, the Florida Supreme Court affirmed broad standing under common law and F.S. Ch. 376, Part II, for releases of pollutants. In Curd v. Mosaic Fertilizer, LLC, 993 So. 2d 1078 (Fla. 2d DCA 2008), the majority relied on the definition of "damage" in F.S. [section]376.031(5) to allow commercial fishermen to sue Mosaic Fertilizer under F.S. [section]376.313 for pollutants that overflowed holding ponds. Justice Polston's partial concurrence would extend standing even further. The opinion impliedly shuts the door on two previously raised causes of action as well. The decision creates one serious question above all. It allows private standing to sue for natural resources damages in conflict with the statute's express public purpose as to natural resource protection, as well as the intent of public natural resource provisions of preempting federal acts. (1) This article focuses principally on the impacts of the decision as to the statutory cause of action.

Case Law History Under F.S. Ch. 376

The challenge of trying to divine the availability and scope of a private right of action for cleanup costs or damages under F.S. [section][section]376.205 and 376.313 (2) is perhaps best stated by Judge Griffin's dissent in Kaplan v. Peterson, 674 So. 2d 201 (Fla. 5th DCA 1996), rev. dismissed, 687 So. 2d 1305 (Fla. 1997): "The statute is so badly drafted that if it does intend to create a cause of action, it opens up a real can of worms in terms of who (3) can sue, where, and for what." (4)

The question of whether a private right of action exists first arose in Cunningham v. Anchor Hocking Corporation, 558 So. 2d 93 (Fla. 1st DCA 1990), rev. den., 574 So. 2d 139 (Fla. 1990). In Cunningham, plaintiffs brought a class action for personal injury claims arising from discharges of toxic substances. The court held that plaintiffs did not have a cause of action under F.S. [section]376.205, because there was no allegation that the "discharges will ultimately pollute state lands or waters," nor were there allegations relating to the purpose of F.S. [section][section]376.01 through 376.17 and 376.19 through 376.21, i.e., to protect Florida's seacoast from hazards associated with the transfer of pollutants between vessels, between onshore facilities and vessels, and between terminal facilities. (5)

However, the court found a cause of action under F.S. [section]376.313, because F.S. [section][section]376.30 through 376.319 deal "with environmental and health hazards, as well as with danger and damage to surface and ground waters posed by the storage, transportation and disposal of pollutants," citing F.S. [section]376.30(2)(b). (6) Although the court noted that the discharges allegedly occurred "upon the land and premises," there was no discussion as to whether the discharge was affecting state lands and waters. Finally, the court held that the claims were not barred by the Workers' Compensation Act, Ch. 440, because the act is not an enumerated defense in F.S. [section]376.308. (7)

Cunningham was by no means the last word. In 1993, the court in Mostoufi v. Presto Food Stores, Inc., 618 So. 2d 1372 (Fla. 2d DCA 1993), rev. den., 626 So. 2d 207 (Fla. 1993), disapproved by Aramark Uniform and Career Apparel, 894 So. 2d 20 (Fla. 2004), considered F.S. [section]376.313 and found that "[a]dmittedly, the Florida statutory language is less than a model of clarity." (8) The court held that because the statute does not prohibit a private cause of action, it does not expressly create a new cause of action that did not previously exist. (9) Further, the court noted that the Federal Water Pollution Control Act (FWPCA), which Ch. 376 is meant to parallel, does not provide a private cause of action for damages. (10) The court did recognize in dicta that there is some indication of an intent by the legislature, in enunciating standards of proof in F.S. [section][section]376.313(3) and (4), to impose in some existing causes of action a new standard of care of strict liability for pollution damages that are found to have occurred. However, even if the standard of care is modified by the statute in pollution discharge causes, that does not equate with the creation of a new cause of action. A cause of action consists of two parts, a wrong and resulting demonstrable damage. Under common law doctrines, without resulting demonstrable damage, a wrong in itself is not compensable. (11)

After Mostoufi, the Fourth DCA in Boardman Petroleum, Inc. v. Tropic Tint of Jupiter, Inc., 668 So. 2d 308 (Fla. 4th DCA 1996), upheld an award of attorneys' fees and costs to a prevailing plaintiff under F.S. [section]376.313. The appellants argued that Ch. 376 did not give rise to a private cause of action, contrary to the trial court's judgment. However, that judgment had become final and was not appealed. (12)

A month later, the Fifth DCA would have its turn in Kaplan v. Peterson, 674 So. 2d 201 (Fla. 5th DCA 1996), rev. dismissed, 687 So. 2d 1305 (Fla. 1997). Kaplan involved a current owner of commercial property suing the prior owner for cleanup costs. The trial court had dismissed claims for fraudulent and negligent misrepresentation and for a violation of Ch. 376 on the grounds of caveat emptor. The issue on appeal was whether Ch. 376 creates a new cause of action for polluting land and groundwater or one that is not barred by caveat emptor. (13)

The court recognized that Mostoufi did not find such a cause of action because 1) a claim for damages based on lost market value was not cognizable under Ch. 376, and 2) Ch. 376 did not create a new cause of action to allow a current land owner to sue a polluting prior owner. (14)

The Kaplan court recognizes that Ch. 376 is modeled on the FWPCA, and that cases decided under the FWPCA hold that private damages are not recoverable under the act. (15) Nevertheless, the court stated as follows: "However, both the Florida and [f]ederal law contain 'savings clauses,' in which the language differs. While the Florida law...