When a Florida couple’s house was nearly washed away by flood waters associated with Hurricane Irma, it appeared they had no legal recourse. Storms and the huge amount of rain they bring are acts of God under the law; often, a victim’s only relief is to seek whatever assistance is available through FEMA.
But once water is on the ground and flows from one property to another, the law may view the water differently, particularly if one property owner has protected his property from flooding at the expense of a neighbor. That’s what happened in a matter handled recently by Dean Mead attorneys Mark R. Leavitt and Timothy W. Sobczak in Orlando, whose forensic investigation of storm damage saved their clients from financial calamity.
The clients owned a house on an acre of lakefront property in Orange County. The rains that accompanied Hurricane Irma in 2017 rushed through and under their house, which – like many lakefront properties – sits at the bottom of a slope that leads to the lake. The water separated the ranch house from its foundations, split walls and damaged the house beyond repair. With no insurance to cover this type of claim, the couple was in despair.
But the clients and their neighbors suspected that the couple’s property may have received more than its natural share of the flood waters because of the actions of a nearby property owner. That’s when the couple came to Dean Mead.
Forensic Review Showed a Nearby Property Owner Caused the Flood Damage
“Over the years I have seen storms do strange things, and I knew that it was imperative to see the property as soon as possible after the storm before the land returned to its pre-storm condition,” says Leavitt. With the support of engineer Dan Morris, Leavitt determined that the damage to the home, which had survived many hurricanes since it was built in 1959, was unlikely to have been inflicted solely by rain waters. Further investigations revealed that the owner of a large nearby property, apparently fearing that flooding would destroy his business, had pumped water from his property onto an adjacent property. When that didn’t remove water fast enough, the business owner cut through a berm, which allowed the water to flow across the neighboring vacant property, ultimately carving a path toward the lakefront house of Dean Mead’s client.
The neighboring property owner denied any responsibility, but Leavitt was able to find other neighbors who had witnessed the pumping and even taken photos of the pumping and destruction of the berm. Drone photographs taken two days after the storm also provided key evidence of the neighbor’s liability. At this point, Leavitt says, the law was clearly on the side of his clients. There is a large body of case law on what you are allowed to do with water on your land. But the underlying principle is that under most circumstances, you are responsible for downstream damages if you drain water from your land in a manner that is not approved by a governmental agency or if the draining exceeds the natural discharge of water from your land.
“If the water had risen naturally and topped the berm, we wouldn’t have had a case,” Leavitt says. “But this seemed to be an intentional, mercenary action. He didn’t seem to care what happened downstream as a result of his action. Under the law, that is both negligence and trespass – the same as if he had physically come on my clients’ property.”
Leavitt then was able to secure a strong settlement for his client. He notes that a trial might have yielded a higher damage award, but “my clients wanted to get on with their lives rather than get embroiled in long, expensive litigation. For them, a good settlement was the best solution.”
Get an expert opinion to view the flood area as soon as possible. If your home is damaged by water, don’t assume it’s from natural causes. In this case, the property owner who caused the damage was more than 1,000 feet away and not visible to the lakefront homeowner. But an engineer was able to look at aerial photographs and other evidence and quickly determine that the breached berm was the cause.
Apply early pressure to the defendants. Leavitt says that he showed the defendant his evidence early on, emphasizing that it would be difficult to convince a jury that the water that damaged the house was the natural result of the storm.
He also filed an offer of judgment early. Under Florida’s offer of judgment statute, a plaintiff may submit an offer to settle a case to the defendant. If the offer is not accepted and the plaintiff receives a subsequent judgment against the defendant in an amount 25 percent or more than the offer, the defendant must pay all reasonable attorney fees and costs from the date the offer was served. Thus, a realistic offer places pressure on a defendant to settle and may reduce the plaintiff’s litigation costs if the case goes to trial.
Determine what is a win. Leavitt says his clients likely would have prevailed in a trial and won a larger award, but they wanted the best net result. “You have to look at the result considering litigation risks, the client’s time, and attorneys’ fees and other litigation costs. In this case, a substantial settlement was the best option,” Leavitt says.
“In every aspect of this case, from the early offer of judgment to providing opposing counsel with forensics and appraisal reports, our goal was to avoid a paper victory where the clients received 100% compensation but a poor net result due to the expense associated with protracted litigation. We believe that this approach paid off for our clients,” says Leavitt.