Stormwater Damage Litigation
Between Florida’s warm weather and growing economy, it’s easy to see why Florida’s annual population growth of 271,000 new residents per year can create planning and development issues for Real Estate developers and local government leaders. Every new land development starts with a site preparation plan. This plan includes demolition of previous 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. Unfortunately, in an effort to remain frugal, many developers cut corners and do not follow the site plan that provides for the proper drainage. This gives cause to a growing problem for Florida landowners known as a stormwater intrusion.
Property Damaged Caused Stormwater Flooding
Thunderstorms in Florida are not new events. 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 landowners. 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.
When your home, your business, or a portion of the property it sits on is suddenly flooded after rain from one of Florida’s thunderstorms. You have an unanticipated problem that could have catastrophic effects on your ability to use the land for the purpose for which you purchased it. Unfortunately, this is not an isolated event. The 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 will need an experienced stormwater 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 due to Negligent Development
The process to recover money from your insurance policies on stormwater property damage can be long and arduous. Most individual efforts to deal with insurance companies are made in vain. If you file a claim with your insurance company, 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. Additionally, even if paid, it is not a good deal for you because it will result in a substantial increase in your next year’s premium if the insurance company accepts and pays your claim. Furthermore, insurance counsel will handle your lawsuit, insurance counsel will listen to the insurance company (not you) as the insurance company is the client, and you will likely be pressured by very inexperienced insurance counsel and your insurance company to settle your lawsuit involving extremely complex stormwater, sediment and soil intrusion issues on very unfavorable terms which do not resolve the issue. We recommend you instead hire an experienced stormwater litigation team consisting of 2 trial attorneys, 1 paralegal, and 1 stormwater 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, so the options for the client from least to most expensive are  option (2) [the flat rate fee];  option (1) [the hourly fee]; and  option (3) [the contingency fee].
In an attempt 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 if you select this option. This money is usually obtained by taking out a mortgage against the property rather than using your savings, investments or retirement account. As the stormwater 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 stormwater flooding. It is only proper that your home’s equity be used to recover your home’s lost equity from the stormwater 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 from storm waters. 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, please note the property cannot be salvaged, and the client will need to recover the fair market value of the home as it would lie in ideal conditions in order to move to an appropriate location. After the site visit, the Verified Complaint is prepared along with the Verified Motion for a Permanent Injunction. Shortly thereafter, an Evidentiary Hearing will need to be held regarding the issuance of a Permanent Injunction at which you and the stormwater engineer will testify. Please 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