The private contractor that handled the prescribed burn in Eastpoint investigators say led to the devastating June 24 Lime Rock Road wildfire is fighting back against civil suits filed in Leon and Franklin county courtrooms following the blaze.
Wildlands Service Inc., represented by Tallahassee attorneys Cecil Davis Jr. and Michael Balducci, has moved to dismiss two civil suits lodged in Franklin County July 5 by Apalachicola attorney J. Patrick Floyd. The suits are on behalf of Willard and Jean Butler, owners of property at 625 and 621 Wilderness Road, and Amanda Hall, who rented a residence and land at 621 Wilderness Road.
Wildlands is also the defendant in a pair of suits filed in Leon County July 13 by Tallahassee attorney Steven Andrews - one on behalf of Joseph, Martha and Tom Putnal, and Leah and Vienna Goebel, all of whom resided at 677 Wilderness Road, and a second on behalf of Natasha Vinson and Phillip Vinson, owners of property at 607 Wilderness Road, and Melanie Cooper and William Hattaway, tenants of the Vinsons’ on that property.
Wildlands contends the law requires the plaintiffs must prove the company showed “gross negligence,” a more difficult standard to prove than negligence, in how it conducted the June 18 controlled burn on 480 acres within the Apalachicola River Wildlife and Environmental Area/ Magnolia Bluff Tract, lands managed by the Florida Fish and Wildlife Commission. A week later, the blaze reignited and destroyed a total of more than 800 acres, killing animals, and destroying homes, cars and boats.
The Wildlands attorneys note in their motion to dismiss Floyd’s suits that the statute defines gross negligence as “conduct so reckless and wanting in care that it constitutes a conscious disregard of indifference to the life, safety or rights of persons exposed to such conduct.”
Thus, the attorneys argue, “any claims with a lesser threshold of liability are thus barred as a matter of law. Allowing plaintiffs to proceed on this claim would violate Florida law and the express limitations for prescribed burns established by the Florida Legislature.”
Wildlands attorneys also contend that because the company was working “at the direction, knowledge and approval of the Florida Forest Service,” it is immune from liability, and subject to the same $300,000 sovereign immunity limit as state agencies.
But, even if a court finds that Wildlands is in any way liable, it could be forced to pay out less than $1 million.
This is because the company held a policy from the Marsh & McLellan Agency out of Thomasville, Georgia, that insured the company commercial liability insurance with a limit of $1 million per occurrence, with additional umbrella coverage with a limit of $5 million.
But the umbrella coverage does not extend to prescribed burns, Floyd said Wildlands’ attorneys have informed him.
“They have an umbrella policy, but it does not apply by the terms of the insurance itself because it exempts prescribed or controlled burn activity,” said Floyd. “The state apparently negotiated this and certainly would have reviewed the insurance documents provided by the contractor.
“The umbrella clearly on its face has an exemption for the very activity that is the main activity of the insured,” he said.
“What’s out of control are the immunities and benefits for the contractors doing the prescribed burns, that’s what’s out of control,” Floyd said. “These people did nothing wrong and their life, everything they had, was burned up, everything they accumulated over their lifetime.
“Somebody has to be responsible for that other than themselves and they shouldn’t have to bear this burden,” he said. “These people don’t have time to wait, they’re living on the edge like a lot of people are on an everyday basis.
“To burn all their tools, their vehicles, their boats, some of their houses, (creates) an emergency situation they can’t stand and they end up leaving and we don’t want our people to leave.”
Floyd said he believes the legislature crafted laws that grant contractors far too much protection for these catastrophes.
“The state is the one that has the responsibility. What they did is provide too much protection for them and too little for the innocent people whose property was burned up,” he said. “We’re going to keep fighting until the judge tells us we can’t anymore. I’ve told them (his clients) to be cautiously optimistic.”
According to a report issued by the Florida Department of Agriculture and Consumer Services, the blaze clearly came in the aftermath of the prescribed burn. They documented no instances of lightning strikes in the area.
“The observed indicators, witness statements, and data collected indicate the unburned vegetative materials left within the boundary of the prescribed burn on FWC managed lands ignited on the day of the Lime Rock Road wildfire and were influenced by winds,” reads the report. “The winds caused embers from the smoldering materials in the FWC prescribed burn area to ignite unburned vegetative materials in the origin area. The abundance of vegetative fuels in the origin area ignited causing the initial three-acre fire (Florida Fire Service rangers) responded to.
“The advancing fire, which was burning in an east northeasterly direction was suddenly influenced by directional wind shifts, and significant wind intensity changes,” read the report. “Directional wind changes from the north caused the fire to quickly burn out of control and towards the south. The wildfire caused 30 homes to be destroyed and significant additional damage to numerous other homes in the community of Eastpoint.
“There were no other ignition sources identified in the vicinity of the origin area,” it reads.