EASTPOINT — A dozen Eastpoint residents, scattered across four civil suits — two filed in Leon County and two in Franklin County — are suing the private contractor that handled the prescribed burn under a contract with the Florida Fish and Wildlife Conservation Commission, a burn that state investigators found was the cause of the June 24 Lime Rock Road blaze.
How the entire legal matter eventually turns out, for plaintiff and lawyer alike, is anyone’s guess, but one thing is certain: The repercussions of a lawsuit against the state by two Shuler brothers, filed a decade ago, affirmed by a jury and later won on appeal, will have a lot to do with what happens.
As it stands now, and it’s a number sure to swell in the weeks ahead, two law firms, Steven R. Andrews in Tallahassee, and J. Patrick Floyd in Apalachicola, have filed suits.
Floyd was first out of the gate, filing July 5 in circuit court in Franklin County on behalf of Willard and Jean Butler, of 625 and 621 Wilderness Road, seeking compensation for their property “damaged, burned and rendered unusable” by the Lime Rock Road fires, which state officials say originated within a private contractor’s prescribed acreage put to a controlled burn earlier that month.
The suit alleges Wildlands Service Inc. out of Tallahassee was negligent, and demands damages be paid, a trial by jury be conducted and the defendant cover all attorney fees and costs.
A second suit, filed by Floyd the same day, is on behalf of Amanda Hall, who rented a residence and land at 621 Wilderness Road. In addition to a similar claim for property damage, it alleges that as a result of the fire, Hall was injured and that this will impair her earning abilities and means a loss of wages.
A week later, on July 13, Andrews filed two suits in Leon County, both against Wildlands, seeking compensation for damages to home and property, lost income and for “severe emotional distress with physical impact.”
One suit is on behalf of Joseph Putnal, Martha Putnal, Tom Putnal, Leah Goebel and Vienna Goebel, all of whom resided at 677 Wilderness Road. A second suit is on behalf of Natasha Vinson and Phillip Vinson, owners of property at 607 Wilderness Road, and Melanie Cooper and William Hattaway, who were tenants of the Vinsons on that property.
Both suits allege the same set of facts: that Wildlands started its controlled burn on Monday morning, June 18, pursuant to a contract with FWC to burn approximately 480 acres within the Apalachicola River Wildlife and Environmental Area.
The Putnal suit says that on June 19, Wildlands advised FWC the “burn went well” and indicated no fire had escaped from the prescribed burn area under contract. An invoice for $26,400 followed, billable at a rate of $55 per acre, for this Magnolia Bluff tract.
“In fact, the prescribed burn had not been fully or adequately extinguished by Wildlands Service,” reads the suit, claiming that “apparently on June 20 (Wildlands) abandoned the job and did not return.”
The suit argues that four days later, the prescribed burn “intensified and spread outside of the prescribed burn area,” burning an additional 340 acres, including the plaintiffs’ personal and real property, all of which was destroyed. “Additionally, as a direct and proximate cause of the spread of the fire to their property, plaintiffs have been caused to suffer adverse health effects, including asthma and the exacerbation of asthma and other respiratory effects,” it says.
The suit argues Wildlands knew the risks of harm posed by the prescribed burn, and could have reasonably taken precautions to eliminate them.
“The risk of the fire spreading to plaintiffs’ property could have been avoided in a commercially reasonably manner, but (Wildlands) failed to do so. (They) could have kept bulldozers and several employees on site to eliminate the risk of the fire spreading to plaintiffs’ homes and property,” reads the suit. “(Wildlands’) failure to take these reasonable precautions was purely for a profit purpose.”
Bryan Finnerty, counsel for the Andrews suits, said he expects several more suits in the days ahead.
“There will another 10 to 12 others,” he said. “There will be more, no doubt.”
In each of the Lime Rock Road Fire suits, the lawyers work on a contingency basis, and then get 40 percent of any jury award for their clients.
According to the certificate of liability insurance Wildlands was required to submit with its bid, the Marsh & McLellan Agency out of Thomasville, Georgia, insured the company with commercial liability insurance with a limit of $1 million per occurrence, and $100,000 for each occurrence to rented premises; with a limit of medical exposure of $5,000 per person, and $1 million for personal injury.
The umbrella coverage has a limit of $5 million in the aggregate, and a limit of $1 million for foresters errors and omissions.
What the Shuler case did
The matter of the coverage limits on this private company’s liability insurance policy, provided by a product of Tokio Marine Group, Japan’s oldest insurance company, stands in contrast to the situation the Shuler Limited Partnership faced a decade ago, when it sued the Florida Department of Agriculture and Consumer Services, and the Division of Forestry for damage to its private timberlands.
The Shuler partnership, with brothers Michael and Gordon Shuler as general partners, turned to the Tallahassee law firm of Hopping, Green & Sams to handle the case in Franklin County, before Circuit Judge Angela Dempsey. The lawyers won a $741,496 verdict for the Shulers, for damage to their 835 acres of trees that a jury agreed had stemmed from the “gross negligence” surrounding the state’s two-day prescribed burn of 3,267 acres in Tate’s Hell State Forest.
The state appealed the verdict, arguing the foresters actions did not rise to the level of gross negligence, as intended by the state legislators when they drafted the statute, and that the trial court had misinterpreted the 2008 state statute pertaining to having a certified prescribed burn manager (CPBM) on site, and how the wording of the term “extinguished” would figure in to the two sides’ arguments.
“There were numerous arguments on appeal, however, the only argument addressed by the majority decision was whether the evidence presented at trial was insufficient to support the jury’s finding of gross negligence,” said Talley Kaleko, an attorney with Brooks, LeBoeuf, Bennett, Foster & Gwartney, in Tallahassee, who is following closely the lawsuits stemming from the Lime Rock Road Fire.
“An important caveat to this issue raised by the state and addressed at length by the dissenting opinion was that the trial court also erred by misinterpreting the open burn statute to allow the Shulers’ claims other than gross negligence to proceed to the jury, i.e. the claims for negligence and negligence per se.”
The majority opinion found there was evidence from which the jury could find gross negligence on the part of the state.
Two of the three judges on the First District Court of Appeal, Phillip Padovano and Simone Marstiller, upheld the Shuler decision, but the third, Scott Makar, wrote a lengthy dissent, arguing that the cumulative effect of three errors in interpreting the statute had led to an unfair trial.
“These issues concern whether any claim other than gross negligence should have moved forward in the case due to a misconstruction of whether the certified burn was done ‘in compliance’ with (the open burn statute); the interpretation of the term ‘extinguished,’ and the interpretation of the statute’s requirements regarding having a (CPBM) on-site until the fire was extinguished,” Kaleko wrote.
In her analysis, she said the Florida Legislature amended the open burn statute in 2013 to address a number of the interpretation issues raised by Judge Makar’s dissent.
“Of significance, the legislature added new definitions for ‘certified prescribed burning,’ ‘contained,’ ‘gross negligence,’ and ‘smoldering,’ ” Kaleko wrote.
In addition, she said the legislature amended the criteria for conducting certified prescribed burns, including when a CPBM must be present on-site and the monitoring requirements for smoldering activity.
“Of great significance to the Eastpoint/Limerock wildfire, the open burn statute now provides under the amendment that ‘fire spreading outside the authorized burn area on the day of the certified prescribed burn ignition does not constitute conclusive proof of inadequate firebreaks, insufficient personnel, or a lack of firefighting equipment.’
“ ‘If the certified prescribed burn is contained within the authorized burn area during the authorized period, a strong rebuttable presumption shall exist that adequate firebreaks, sufficient personnel, and sufficient firefighting equipment were present,’ ” she noted. “ ‘Continued smoldering of a certified prescribed burn resulting in a subsequent wildfire does not by itself constitute evidence of gross negligence under this section.’ ”
In addition, the statute was expanded to protect leaseholders, contractors and their “legally authorized designees,” in addition to property owners and their agents, from liability for damage or injury caused by fire, “including the re-ignition of a smoldering, previously contained burn … for burns conducted in accordance with this subsection, unless gross negligence is proven,” Kaleko said.
In other words, the road might be steeper now than it was for the Shulers a decade ago.
Another important difference between the two cases is that a private contractor such as Wildlands might not figure under the shield of sovereign immunity that the Shulers faced in 2008.
Because that 2008 burn was conducted entirely by state personnel, damages paid out by the state were capped at $100,000, a limit for sovereign immunity that since has been expanded to $200,000 by the legislature.
Any additional jury award in a case involving such a Florida government entity can be secured only by gaining the approval of that amount in a claims bill passed by the legislature.
The Shulers have tried unsuccessfully for several years to obtain a $670,493 claims bill from state legislators.
This year, the proposal, sponsored by State Sen. Bill Montford, D-Tallahassee, was approved 36-1 by the Senate, but the House version was not heard by House committees.