Stormwater Damage Litigation
Florida’s warm weather, growing economy, and annual population growth of 271,000 new residents per year has created planning and development issues for developers.
Every new land development starts with a site preparation plan. This plan includes demolition of previous structures, building new structures, excavation, landfill, leveling, and land drainage. Grading land is the process that provides for proper drainage in the event of rainfall to prevent flooding. Many developers, however, cut corners and fail to follow the site plan that provides for the proper drainage. This gives cause to a growing problem for Florida landowners known as a storm water intrusion.
Property Damaged Caused Stormwater Flooding
Thunderstorms in Florida are commonplace. Given Florida’s natural wetlands and marshes, real estate developers must prepare the land and properly grade each development to prevent Florida’s average rainfall of 54 inches per year from becoming a disaster for Florida homeowners. There are essentially 3 types of water:
There are essentially 3 types of water:
- Potable water – Water used for drinking
- Reclaimed water – Water used to irrigate your lawn or crops
- Storm water – Water from a Florida Thunderstorm
What is Stormwater Intrusion? Why you must file a Lawsuit.
Your home, business, or a portion of the property is suddenly flooded after rain from one of Florida’s thunderstorms. The thunderstorms could have a catastrophic effect on your ability to use the land for the purpose for which you purchased it.
Unfortunately, this is not an isolated event. Flooding worsens with the increasing volume of stormwater combined with dirt, sediment, and soil intrusion. When these things happen and your land becomes unstable or unusable, you should consult with an experienced storm water litigation team to evaluate the grading of your land in relation to neighboring land developments, recover damages and restore your rights as a property owner. The problem of having developable land for new buildings and homes has become a growing concern in areas such as Orlando, Jacksonville, Tampa, St. Petersburg, Clearwater, Sarasota, Naples and Venice.
What You Can Do If Your Property Has Been Damaged
The process to recover money from your insurance policies on stormwater property damage can be long and arduous. Most individual efforts deal with insurance companies by filing a claim. It will likely be denied because it is a “tort” being committed by your neighbor and the insurance company will likely tell you that this is a “private civil” matter between neighbors. Even if your insurance company pays you for your damages suffered, it may result in a substantial increase in your next year’s premium. Furthermore, insurance counsel will handle your lawsuit. Insurance counsel listens to the insurance company (not you, the homeowner) as the insurance company is the client. You might be pressured by inexperienced insurance counsel and insurance company to settle your lawsuit involving complex storm water, sediment and soil intrusion issues on unfavorable terms which do not resolve the issue. We recommend you instead hire an experienced storm water litigation team consisting of 2 trial attorneys, 1 paralegal and 1 storm water engineer who will serve as the expert witness.
How you can afford to Hire an Experienced Stormwater Litigation Team
Payments for stormwater lawsuits can be handled in 1 of 3 ways:
- On an hourly basis where you are charged for each hour of the lawyer’s time;
- A flat-rate fee of $125,000
- A contingency fee is typically 40% of the ultimate recovery.
Stormwater lawsuits cost on average $245,000 in attorneys’ fees to handle from start to finish.
To work with property owners, we are able to offer a flat rate fee of $125,000 for the entire litigation. This structure saves you on average $120,000. This money is usually obtained by taking out a mortgage against the property rather than using your savings, investments, or retirement account. As the storm water intrusion is periodic, not persistent, it will likely not negatively impact your property’s appraised value. You may wonder why you would use a mortgage to pay fees for a property whose value has been negatively impacted by storm water flooding. It is only proper that your home’s equity be used to recover your home’s lost equity from the storm water intrusion. Second, you will save an average of $120,000 on attorney’s fees and litigation costs. Third, once you have prepaid the lawsuit, you will not have to worry about your lawyers withdrawing from the lawsuit due to billing or payment issues as the lawsuit heats up until its conclusion.
Why a Consultation is Needed for Stormwater Intrusion Lawsuit
The complexity of a stormwater intrusion lawsuit necessitates a consultation to gather all relevant information about the properties and the parties involved. With the impact of COVID-19 on Florida, these lawsuits are generally taking 2-3 years to complete. Here is what you may expect if you are facing property damage. The first step is to meet with your stormwater litigation team. Then you will need to hire the stormwater engineer expert witness to prepare the report. Once the report is prepared, the stormwater litigation team will conduct a site visit of your property with you so the stormwater engineer can visibly demonstrate to the attorneys what is transpiring and how to fix it, if it can be fixed.
In some situations, the property cannot be salvaged, and the client will need to recover the fair market value of the home and move to an appropriate location.
After the site visit with the engineer and litigation team, the Verified Complaint is prepared along with the Verified Motion for a permanent Injunction. A permanent injunction would be to stop your neighbor’s water intrusion onto your property. Shortly thereafter, an Evidentiary Hearing will be held regarding the issuance of a Permanent Injunction at which you and the stormwater engineer will testify. Note, however, that injunctions are extraordinary relief and are rarely granted in these cases.
Please give us a call if we can be of service to you. We stand by, ready, willing, and able to help you with this pressing need.
Frequently Asked Questions Regarding Stormwater Litigation
Are there any other costs to file a Stormwater Lawsuit?
Yes, in addition to the attorneys’ fees described previously, you will need to set aside $10,000 to $25,000 for the stormwater engineer to prepare the report, conduct the site visit and testify in Court. As the stormwater engineer is the key witness to the entire case, this cost is a necessity. Furthermore, it is generally advisable for the client to set aside $15,000 for costs such as filing fees, service of process, depositions, court reporters, travel, etc. Hence, when taking out the mortgage to do the flat fee, it is advisable to take out $165,000 in equity: (1) $125,000 for the flat rate fee; (2) $25,000 for the stormwater engineer; and (3) $15,000 in costs.
What is the legal basis for a stormwater lawsuit?
There are generally 3 causes of action in any stormwater lawsuit: (1) trespass on real property; (2) nuisance; and (3) permanent injunction. The first 2 causes of action are set forth to give you money (otherwise known as “damages” in a court of law), while the 3rd cause of action is to permanently prevent the stormwater runoff from occurring in the future, usually by the Court requiring the offending neighbor to pay for or build an alternative stormwater pathway, a retention wall, or a retention pond.
What is grading of the land?
Grading is merely the process of smoothing out the dirt and gravel, usually with a backhoe, so that, for example, the house pad can be established upon which the foundation is laid. When done improperly, which is very easy to do as these lands are cleared quickly and new homes are put up daily based upon need, the stormwater runoff does not divert into the pathways set up in the street or nearby waterway as intended by the site plan. Instead, (some or all of) the stormwater runoff is now diverted onto your property built at a lower elevation. It is only logical. The storm water will follow the path of least resistance in order to drain from property at a higher elevation to a property at a lower elevation as quickly as possible after a storm event. It will traverse your property instead of going to the street if the over grading has made your property the easiest option for stormwater runoff.
Are the attorney’s fees recoverable from the offending party? No, there is no statutory or contractual provision for attorney’s fees in stormwater lawsuits. However, it is advisable to always submit an Offer of Judgment/Proposal for Settlement to the offending party for the amount due and owing. If the offending party pays, you have won. If the offending party does not pay the offer amount and you