Mosaic Fertilizer, LLC v. Curd

259 So. 3d 239
CourtDistrict Court of Appeal of Florida
DecidedNovember 9, 2018
DocketCase No. 2D17-2302
StatusPublished

This text of 259 So. 3d 239 (Mosaic Fertilizer, LLC v. Curd) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mosaic Fertilizer, LLC v. Curd, 259 So. 3d 239 (Fla. Ct. App. 2018).

Opinion

NORTHCUTT, Judge.

Mosaic Fertilizer, LLC, appeals a nonfinal order granting plaintiffs' motion for class certification. We reverse because the putative class of plaintiffs failed to demonstrate a reasonable methodology for proving classwide claims.

Howard Curd and other commercial fishermen sued Mosaic following a pollutant spill into Tampa Bay. The fishermen alleged that Mosaic owned or operated a phosphogypsum storage area near Archie Creek in Hillsborough County. Within the storage area was a pond containing the *241pollutant-rich wastewater from a phosphate plant. Although dikes enclosed the wastewater pond, the fishermen alleged that in the summer of 2004 the Hillsborough County Environmental Protection Commission and the Florida Department of Environmental Protection warned Mosaic that the pond was dangerously close to exceeding safe storage levels. In September 2004 Hurricane Frances swept across Florida, and on September 5, 2004, the dike gave way, spilling wastewater into Tampa Bay. In their lawsuit, the fishermen claimed that "the spilled pollutants resulted in a loss of underwater plant life, fish, bait fish, crabs, and other marine life. [Though the fishermen did not claim ownership of the damaged marine life, they claimed that the spill] resulted in damage to the reputation of the fishery products the fishermen are able to catch and attempt to sell." Curd v. Mosaic Fertilizer, LLC, 993 So.2d 1078, 1079 (Fla. 2d DCA 2008), decision quashed, 39 So.3d 1216 (Fla. 2010).

The circuit court allowed the fishermen to proceed on their claim, but ultimately it dismissed the claim as unauthorized by the economic loss rule. See generally Tiara Condo. Ass'n. v. Marsh & McLennan Cos., 110 So.3d 399, 401-07 (Fla. 2013) (discussing the origin and development of the economic loss rule). This court affirmed and certified questions of great public importance; the Florida Supreme Court quashed this court's opinion and held that the economic loss rule did not bar the fishermen from pursuing both a common law negligence claim as well as a statutory cause of action under section 376.313(3), Florida Statutes (2004). Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216 (Fla. 2010) (quashing Curd v. Mosaic Fertilizer, LLC, 993 So.2d 1078 (Fla. 2d DCA 2008) ). The supreme court concluded that section 376.313(3) provides "private causes of action to any person who can demonstrate damages as defined under the statute," id. at 1222, and that "the discharge of the pollutants constituted a tortious invasion that interfered with the special interest of the commercial fishermen to use those public waters to earn their livelihood." Id. at 1228.

On remand, the fishermen filed their fifth amended complaint and made an initial attempt to certify a class of commercial fishermen. However, the fishermen later opted to forgo class certification and instead moved to intervene or join the putative class members and proceed on a nonclass basis. The circuit court denied the motion to intervene. The fishermen appealed, and this court affirmed without opinion. Anderson v. Mosaic Fertilizer, LLC, 160 So.3d 419 (Fla. 2d DCA 2015) (table decision).

Again before the trial court, the fishermen moved for class certification. They defined the putative class members as:

Those persons engaged in the commercial catch and sale of fish, bait fish, shrimp, crabs, and other living sea creatures in the Tampa Bay and who have lost income and continue to suffer damages because of the pollution, contamination, and discharge of hazardous substances by the defendant, Mosaic.

The fishermen argued that the putative class met all of the threshold requirements of Florida Rule of Civil Procedure 1.220(a). They also asserted that the putative class met rule 1.220(b)(3)'s predominance requirement because all members are entitled to recover under the exact same legal theories and because the members sustained damages resulting from the same spill. The fishermen concluded that the "overwhelming common legal and factual aspects between the claims of the named Plaintiffs and putative class members dwarf any variation in the claims and predominate over any individualized issues."

*242Mosaic responded in opposition to class certification. It contended that the fishermen ultimately would be unable to prove any of their claims, and it attached a bevy of environmental impact reports authored by various government agencies as well as private environmental services firms. Mosaic asserted that all of the reports indicate that the pollutant release from the Mosaic facility was "localized, ephemeral, and resulted in no statistically significant difference in the composition of the fish and invertebrate communities" in Tampa Bay. Mosaic attacked the putative class on all grounds of rule 1.220(a) and argued that the fishermen could not demonstrate a classwide impact or a methodology for generalized proof sufficient to support certification.

The circuit court held a hearing on the motion for certification. On the first day of hearings, the fishermen presented the testimony of two plaintiffs, Eugene Nipper and Howard Curd. Nipper testified that he is a commercial fisherman who has dived in the waters of Tampa Bay since the 1970s. He recounted that since he began his career, he regularly walked on the bottom of Tampa Bay using weights and scuba equipment. Nipper related that he used to see a flourishing seabed where he walked the bottom. But after the spill, he said, he began seeing more dead sea life and noticed that the color of the water changed. Nipper stated that over time, more sponges started to come back after an initial decline following the spill. After a series of objections from Mosaic, the court ruled that Nipper was not qualified to offer opinions about the spill's impact on the condition of the water or on the marine and vegetation life. Nipper's testimony was restricted to his personal observations and recollections of after-spill changes to Tampa Bay.

Curd, a commercial fisherman in Tampa Bay for thirty years who fished primarily for blue crab, testified that in the days following the spill, his traps were filled with dead blue crab. He also stated that the year after the spill, the blue crab did not come as far into the bay as they once had.

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Related

Curd v. Mosaic Fertilizer, LLC
993 So. 2d 1078 (District Court of Appeal of Florida, 2008)
MARCO ISLAND CIVIC ASS'N INC. v. Mazzini
805 So. 2d 928 (District Court of Appeal of Florida, 2001)
Ernie Haire Ford, Inc. v. Gilley
903 So. 2d 956 (District Court of Appeal of Florida, 2005)
Engle v. Liggett Group, Inc.
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BOUCHARD TRANSPORTATION CO. INC. v. Updegraff
807 So. 2d 768 (District Court of Appeal of Florida, 2002)
Sosa v. SAFEWAY PREMIUM FINANCE CO.
73 So. 3d 91 (Supreme Court of Florida, 2011)
Tiara Condominium Ass'n v. Marsh & McLennan Companies
110 So. 3d 399 (Supreme Court of Florida, 2013)
Curd v. Mosaic Fertilizer, LLC
39 So. 3d 1216 (Supreme Court of Florida, 2010)

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Bluebook (online)
259 So. 3d 239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mosaic-fertilizer-llc-v-curd-fladistctapp-2018.