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Jerue v. Drummond Co.

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION
Aug 17, 2017
Case No: 8:17-cv-587-T-17AEP (M.D. Fla. Aug. 17, 2017)

Opinion

Case No: 8:17-cv-587-T-17AEP

08-17-2017

JOHN J. JERUE, On Behalf of Himself and all Others Similarly Situated and MICHAEL J. FEIST, On Behalf of Himself and all Others Similarly Situated, Plaintiffs, v. DRUMMOND COMPANY, INC., Defendant.


ORDER

This cause comes before the Court pursuant to the Motion to Dismiss or, Alternatively, Stay Plaintiffs' Claims (Doc. No. 16) (the "Motion to Dismiss") filed by the Defendant, Drummond Company, Inc. (the "Defendant" or "Drummond"), the response in opposition (Doc. No. 27) filed by the Plaintiffs, John J. Jerue, et at. (the "Plaintiffs"), and the reply (Doc. No. 30) filed by the Defendant. For the reasons set forth below, the Motion to Dismiss is GRANTED IN PART AND DENIED IN PART.

I. Introduction

The Court must decide whether Florida's formulation of the economic loss rule precludes the Plaintiffs' claims for purely economic damages in tort and, if not, whether the Plaintiffs claims are timely and otherwise state a claim upon which relief can be granted. Because Florida law, regrettably, does not restrict negligence-based liability to claims for bodily injury or property damage, the Plaintiffs have standing to proceed under a theory of negligence. Moreover, because Florida law does not have a statute of repose for negligence claims not founded on products liability, the Plaintiffs' negligence claims are not subject to dismissal for being untimely. Finally, because there is no principled reason to deny that the Defendant owed the Plaintiffs a duty of care under the facts of this case, the Plaintiffs' negligence claims are not subject to dismissal for failure to satisfy the federal pleading standard.

II. Background

The Plaintiffs are the current owners of residential property located in the Oakbridge and Grasslands communities of Polk County, Florida. (Doc. No. 12, at ¶¶ 28). According to the Plaintiffs, the Defendant, a phosphate miner and developer of residential communities, "mined, disposed of wastes, and 'reclaimed' the land that became known as the Oakbridge and Grasslands developments." (Doc. No. 12, at ¶ 37). The Plaintiffs allege that as a result of the Defendant's phosphate mining activities, their properties are contaminated with radium-226, which has resulted in "high levels of [harmful] gamma radiation." (Doc. No. 12, at ¶ 13). The Plaintiffs claim that these conditions of contamination have caused a diminution in the value of their properties and necessitate medical monitoring to guard against the contraction of dangerous diseases and other health conditions. (Doc. No. 12, at ¶ 129). As a result, the Plaintiffs assert causes of action for environmental restoration under Chapter 376 of the Florida Statutes (Count I); negligence and negligence per se (Count II); fraud and fraudulent concealment (Count III); negligent misrepresentation (Count IV); private nuisance (Count V); strict liability (Count VI); and unjust enrichment (Count VII).

The Defendant has responded to the amended complaint (Doc. No. 12) (the "Amended Complaint") by submitting extrinsic evidence in the form of real property records reflecting that the Plaintiffs purchased their properties from third-parties more than 10 years ago. The Defendant argues that the significant passage of time from when the Plaintiffs purchased their properties requires dismissal for failure to comply with applicable statues of limitations and repose. The Defendant further argues that the lack of privity between the Plaintiffs and Defendant negates, as a matter of law, any claims sounding in fraud or negligent misrepresentation due to the Plaintiffs' inability to allege reliance. Moreover, the Defendant argues that the Plaintiffs lack standing, and are otherwise precluded from recovering under a negligence theory, due to their failure to allege bodily injury or property damage. Finally, the Defendant challenges several of the Plaintiffs' other causes of action, including their claims for strict liability, nuisance, and unjust enrichment for failing to state a claim under applicable law. The Court will address these arguments in Section IV below.

III. Legal Standard

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In evaluating whether a complaint meets the federal pleading standard, the Court is not required to "accept as true" any allegations that constitute legal conclusions. Id. Once the Court has identified the plaintiff's well-pleaded factual allegations that do not constitute legal conclusions, the Court must determine whether those allegations "plausibly give rise to an entitlement to relief." Id. at 679. This, according to the Supreme Court, is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. Further, dismissal is warranted under Rule 12(b)(6) if, assuming the truth of the complaint's factual allegations, a dispositive legal issue precludes relief. Neitzke v. Williams, 490 U.S. 319, 326 (1989).

Moreover, "[i]n alleging fraud or mistake" under Federal Rule of Civil Procedure 9(b), "a party must state with particularity the circumstances constituting the fraud or mistake." Fed. R. Civ. P. 9(b). "Particularity means that a plaintiff must plead facts as to time, place and substance of the defendant's alleged fraud, specifically the details of the defendant's allegedly fraudulent acts, when they occurred, and who engaged in them." U.S. v. McInteer, 470 F.3d 1350, 1357 (11th Cir. 2006). Stated differently, the Plaintiff must plead the "who, what, when, where, and how" of the alleged fraud. Garfield v. NDC Health Corp., 466 F.3d 1255, 1262 (11th Cir. 2006). "Because actions for negligent misrepresentation sound in fraud rather than negligence, the pleading requirements contained in Federal Rule of Civil Procedure 9(b) apply to such actions." Postel Indus., Inc. v. Abrams Grp. Const., LLC, 2012 WL 4194660, *2 (M.D. Fla. Sept. 19, 2012).

IV. Discussion

The Defendant's arguments for dismissal are essentially threefold. First, the Defendant argues that the case should be dismissed because the Plaintiffs lack standing. Second, the Defendant contends that the Plaintiffs' claims are barred by applicable statutes of limitations and repose. Third, the Defendant takes the position that the Plaintiffs' substantive claims fail as a matter of law. Ordinarily, the Court would address each of the foregoing issues in turn. However, because one issue, namely the economic loss rule, transcends many of the parties' arguments, the Court will begin its analysis by discussing the applicability of the economic loss rule to the Plaintiffs' claims. After doing so, the Court will consider whether (1) the Plaintiffs have standing to sue, (2) the Plaintiffs' claims are barred by applicable statues of limitations and/or repose, and (3) the Plaintiffs have stated substantive causes of action.

A. Economic Loss Rule

"Negligence law," as it currently exists, "evolved from the intentional tort of trespass on the case." Monroe v. Sarasota Cty. Sch. Bd., 746 So.2d 530, 534 (Fla. 2d DCA 1999). "Because trespass on the case tended to protect a plaintiff only for property damage or injury to person," the concept that negligence only protects against bodily harm or property damage "carried over to negligence law." Id. The "economic loss rule" is essentially a short-hand way of referencing this "fundamental boundary" between contract law, which allows plaintiffs to sue for purely economic damages, and tort law, which requires allegations of bodily injury or property damage. Cf. Tiara Condo. Ass'n, Inc. v. Marsh & McLennan Cos., 110 So.3d 399, 401 (Fla. 2013). However, like with most rules, over time various exceptions to the economic loss rule have gained acceptance. For instance, persons who suffer purely economic damages due to professional malpractice may now sue under a theory of negligence despite the absence of bodily harm or property damage. Monroe, 746 So.2d at 535-36.

One area, on the other hand, where courts have steadfastly refused to discard the traditional concept that negligence only protects against bodily harm or property damage is in the products liability context. Id. at 536. To the contrary, "to assure that warranty claims remained in warranty law and did not evolve into a type of strict liability," courts cited the so-called "economic loss rule" as a basis to "prohibit products liability claims for purely intangible economic damages and to require those economic risks associated with products to be resolved through warranty law and private contracts." Id. This is unsurprising because, according to the Florida Supreme Court, the so-called economic loss rule "has its roots in the products liability arena, and was primarily intended to limit actions in the products liability context." Tiara, 110 So.3d at 401. In a major sea change for the profession, however, citing to the "unprincipled expansion of the rule" beyond the products liability context, the Florida Supreme Court recently held that "the economic loss rule only applies in the products liability context." Id. at 402-407 (emphasis added). The logical implication of the Florida Supreme Court's ruling in Tiara is that outside of the products' liability context, a plaintiff may sue in tort for purely economic damages "unaccompanied by any injury to a person or other property." Indemnity Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So.2d 532, 543 (Fla. 2004).

While the Florida Supreme Court correctly identifies the viability of the "economic loss rule" in products liability cases, it is the view of this Court that Tiara ignores the fundamental first principle of negligence-based liability, i.e. that negligence only protects against bodily harm or property damage, not purely economic losses. In fact, in East River S.S. Corp. v. Transamerica Delaval, Inc., the United States Supreme Court decision credited with giving rise to the products liability economic loss rule, the Court began its analysis by noting that "[t]he paradigmatic products-liability is one where a product . . . causes bodily injury." 476 U.S. 858, 866 (1986) (emphasis added). One sentence later, the Court recognized that for "reasons of safety, the manufacturer's duty of care [in the products liability context has been] broadened to include protection against property damage." Id. at 867 (emphasis added). It is no coincidence that the Court began its analysis by recognizing and repeating the fundamental first principle that negligence only protects against bodily harm or property damage. Viewed from that perspective, it should surprise no one that the Court ultimately concluded "[d]amage to a product itself is most naturally understood as a warranty claim," i.e. a contract claim, and that "the tort concern with safety," i.e. bodily injury and property damage, is not present in tort actions for "purely economic damages." Id. at 872-74.

Read in its proper context, East River seems merely a reaffirmation that a plaintiff may not recover purely economic damages under a theory of negligence. Why then would the Florida Supreme Court feel the need to guard against "the unprincipled extension" of the economic loss rule to negligence claims seeking purely economic damages? Frankly, the Florida Supreme Court's precedent does not provide a satisfying answer to that question. At the risk of being exposed as unreasonably incredulous, it is the view of this Court that to the extent the economic loss rule is merely a reaffirmation of the fundamental concept that negligence only protects against bodily harm or property damage, not purely economic losses, it is impossible to extend the economic loss rule in any "unprincipled" way. Quite the opposite, restricting the economic loss rule to the products liability context expands the scope of negligence-based liability far beyond that which it was intended to address.

This Court is not alone in its belief that the tort of negligence is primarily intended to guard against personal injury and property damage. For instance, the American Law Institute, which publishes the Restatement of the Law Third Torts: Liability for Physical and Emotional Harm (the "Third Restatement"), expressly limits the scope of negligence law to bodily harm or property damage. See Restatement (Third) of Torts § 6 (Am. Law. Inst. 2012) ("An actor whose negligence is a factual cause of physical harm is subject to liability for any such harm within the scope of liability . . ." (emphasis added)). This is no trivial matter because, as Third Restatement recognizes, the extension of negligence-based liability to cases involving purely economic losses can interfere with important principles reflected in other areas of the law. See Restatement (Third) of Torts § 7 cmt. d (Am. Law. Inst. 2012). "For example, one reason the general duty of reasonable care . . . is limited to physical harm is that liability for purely economic harm in commercial cases often raises issues better addressed by contract law or by the tort of misrepresentation." Id. "Similarly, no-duty and limited-duty rules in cases involving owners and occupiers of land are influenced by issues that are important in property law." Id.

There is perhaps no better an example of negligence-based liability intruding into the realms of commercial, property, and statutory law than the case at hand. Here, the Plaintiffs assert statutory claims for environmental restoration; common law theories of fraud, fraudulent concealment, and negligent misrepresentation; and negligence, negligence per se and strict liability, among others. All of these claims are based on the same purely economic damages, i.e. diminution in the value of the Plaintiffs' properties. Far from a situation where the law leaves an injured and vulnerable plaintiff with no remedy, the Plaintiffs in this case have multiple, overlapping, and duplicative means of recovering their alleged economic losses. Ideally, the Court could dismiss the Plaintiffs' negligence-based claims for failure to allege physical harm, and the Plaintiffs would be free to proceed forward on their statutory claims for environmental restoration and common law claims for fraud and fraudulent concealment. However, under the Florida Supreme Court's interpretation of the economic loss rule, this is not an option. Rather, the Court (and the parties) must travel the far longer, more difficult, and, frankly, more treacherous path of attempting to harmonize and reconcile all of the various theories of liability at issue in this case.

As the following sections of this order illustrate, this is no easy task. For instance, in Section IV. B. of this order, the Court has no difficulty concluding that the Plaintiffs have standing to sue for the purely economic harm of diminution to the value of their properties. The intentional torts of fraud and fraudulent concealment unquestionably embrace such a theory of damages. Yet, in the following section of this order, the Court must confront the paradox that while the statute of limitations for a negligence claim begins to accrue when the last element of the claim, i.e. damages, occurs, the Plaintiffs' alleged damages did not accrue until they filed this case and, by extension, brought into the public spotlight allegations that their properties are contaminated by gamma radiation. So when, exactly, does the statute of limitations for this purely economic harm begin to run? The intentional torts of fraud and fraudulent concealment provide an easy answer: when the plaintiff discovered, or reasonably should have discovered, the fraud. See Fla. Stat., § 95.031(2)(a). The tort of negligence: whenever the plaintiffs feel like making their allegations public. So why should there be an indefinite statute of limitations for a negligence claim based on diminution of property values, but a finite one for the exact same claim under a theory of fraud? The simplest answer is that there is no such thing as a negligence-based claim for diminution of property values, but that apparently is not one of the available answers selected by the Florida Supreme Court. For these reasons, among others, it is necessary for the Court to disclaim that some of the conclusions reached in this order are unsatisfying. However, the Court will, as it must, use its best efforts to provide the parties with a workable ruling under the framework of the economic loss rule articulated by the Florida Supreme Court.

B. Standing

Article III of the Constitution limits federal courts' jurisdiction to "Cases" or "Controversies." Clapper v. Amnesty Intern. USA, 568 U.S. 398, 408 (2013). "One element of the case-or-controversy requirement is that plaintiffs must establish that they have standing to sue." Id. (internal quotations omitted). "To establish Article III standing, an injury must be 'concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.'" Id. at 409 (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010)). "The party invoking federal jurisdiction bears the burden of establishing standing." Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342 (2014) (internal quotation omitted). "Each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Id. (internal quotations omitted).

The Defendant argues that the Plaintiffs have failed to satisfy Article Ill's standing requirements. Specifically, the Defendant asserts that the Plaintiffs have failed to allege any personal injuries or property damage. The Defendant further takes issue with the fact that the Plaintiffs have not alleged the current levels of radiation they claim are affecting their property. The Plaintiffs, for their part, allege that "[a]s a result of Drummond's actions . . . mining waste and radioactive substances have entered onto Plaintiffs' . . . properties and have contaminated their property . . . thereby causing Plaintiffs . . . to suffer damage to property and personal finance, loss of the use and enjoyment of property and destruction of their community." (Doc. No. 12, at ¶ 30). The Plaintiffs go on to allege that the Defendant's actions have caused them to suffer "an increased and significant risk to their health necessitating medical monitoring." (Doc. No. 12, at ¶ 31). While the foregoing allegations may not constitute allegations of bodily harm or property damage, the injuries alleged are "concrete, particularized, and actual," as well as traceable to the Defendant. See Clapper, 568 U.S. at 409. Moreover, given that the intentional torts of fraud and fraudulent concealment (not to mention negligence, under Florida's formulation of the economic loss rule) allow plaintiffs to recover purely economic damages, the alleged injuries are redressable by the Court. Accordingly, taken as true, the Plaintiffs' allegations are sufficient to satisfy the Constitution's Article III standing requirements.

C. Statutes of limitations and repose

"[A] statue of limitations creates a time limit for suing in a civil case, based on the date when the claim accrued." CTS Corp. v. Waldburger, 134 S. Ct 2175, 2182 (2014) (internal quotations omitted). "A statute of repose, on the other hand, puts an outer limit on the right to bring a civil action." Id. "A statute of repose bars any suit that is brought after a specified time since the defendant acted . . . even if this period ends before the plaintiff has suffered a resulting injury." Id. "One central distinction between statues of limitations and statutes of repose" is that "[s]tatutes of limitations, but not statutes of repose, are subject to equitable tolling." Id. "Statutes of repose, on the other hand, generally may not be tolled, even in cases of extraordinary circumstances beyond a plaintiff's control." Id.

Section 9658(a)(1) of CERCLA "contains a provision that by its terms pre-empts [State] statutes of limitations" in cases involving hazardous substances. Id. at 2180. In particular, Section 9658(a)(1) states that in

any action brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance . . . released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute.
42 U.S.C. § 9658(a)(1). The "federally required commencement date" is "the date the plaintiff knew (or reasonably should have known) that the personal injury or property damages referred to in [Section 9658(a)(1)] were caused or contributed to by the hazardous substance . . . concerned." 42 U.S.C. § 9658(b)(4). Read together, the foregoing provisions of Section 9658(a)(1) adopt a federally mandated discovery rule under which "covered actions begin to run when a plaintiff discovers, or reasonably should have discovered, that the harm in question was caused by the contaminant." Id. Importantly, while Section 9658(a)(1) "pre-empts state statutes of limitations that are in conflict with its terms," it does not pre-empt state statutes of repose. Id. Thus, to the extent the Plaintiffs can avail themselves of Section 9658(a)(1), the discovery rule only applies to applicable statutes of limitations, not statutes of repose.

Here, the Defendant challenges the Plaintiffs' claims for (1) environmental restoration under Chapter 376 of the Florida Statutes, (2) negligence and negligence per se, and (3) fraud, fraudulent concealment, and negligent misrepresentation, as being barred by applicable statutes of limitations and/or repose. The Defendant further challenges the timeliness of all of the Plaintiffs' claims under the 10 year statute of repose applicable to claims founded on the design, planning, or construction of an improvement to real property. The Court will consider those issues in turn, and determine whether the claims are timely under the applicable statutes of limitations and/or repose.

1. Chapter 376

Section 376.313(3) of the Florida Statutes creates a private cause of action "for all damages resulting from a discharge or other condition of pollution covered by [Sections] 376.30 - 376.317 and which was not authorized pursuant to chapter 403." Fla. Stat., § 376.313(3); see also Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216, 1221-22 (Fla. 2010) (noting that in Aramark Uniform & Career Apparel, Inc. v. Easton, 894 So.2d 20 (2004), the Florida Supreme Court recognized that Section 376.313(3) "creates a private cause of action."). Section 376.313(3) is a strict liability statute, and "in any such suit, it is not necessary for such person to plead or prove negligence in any form or manner." Fla. Stat., § 376.313(3); see also Curd, 39 So.3d at 1222 (noting that Section 376.313(e) "creates a cause of action for strict liability regardless of causation."). Importantly, "[t]he only defenses to such cause of action shall be those specified in [Section] 376.308." Fla. Stat., § 376.313(3). The defenses specified in Section 376.308 "include acts of war, acts by a government entity, acts of God, and acts or omissions by a third party." Curd, 39 So.3d at 1222. The Florida Supreme Court has consistently held that defenses not specifically listed in Section 376.308 have been "deliberately omitted" and, as a result, are unavailable to defendants. Id.

Importantly, statutes of limitations and statutes of repose are affirmative defenses that a defendant must affirmatively plead under Federal Rules of Civil Procedure 8(b) and (c). See Fed. R. Civ. P. 8(c) (listing statute of limitations as an example of an affirmative defense that "a party must affirmatively state."). Section 376.308 of the Florida Statutes does not contain a statute of limitations or statute of repose defense to a claim brought pursuant to Chapter 376 of the Florida Statutes. See Fla. Stat., 376.308(2)(1)(a)--(d). As a result, it is reasonable to infer that the Florida Legislature "deliberately omitted" any statute of limitations or statute of repose defense to a claim under Chapter 376 of the Florida Statutes. Consequently, the Plaintiffs' claims under Chapter 376 of the Florida Statutes are not barred by any statutes of limitations or statutes of repose.

2. Negligence and Negligence Per Se

The statute of limitations for a claim of negligence or negligence per se is four years. See Fla. Stat., § 95.11(3)(a). Florida law does not specify any statute of repose for negligence claims not founded on products liability. See Fla. Stat., § 95.031(2)(b) (specifying a 12 year statute of repose in products liability actions, subject to the exceptions noted in Section 95.031(2)(c) and (d)). The four year statute of limitations applicable to a claim founded on negligence "runs from the time the cause of action accrues." Fla. Stat., § 95.031. "A cause of action accrues when the last element constituting the cause of action occurs." Fla. Stat., § 95.031(1). The elements of a negligence claim are: (1) duty, (2) breach of that duty, (3) causation, and (4) damages. Curd, 39 So.3d at 1227.

Here, the gist of the Plaintiffs' negligence and negligence per se claims is that (1) the Defendant had a duty to exercise reasonable care in the use of contaminated land for residential and commercial use, (2) the Defendant breached that duty by failing to adequately reclaim and restore its mining lands in such a manner, (3) the Defendant's breach foreseeably and, in fact, caused, (4) the Plaintiffs to suffer damages in the form of diminution in value to their properties, loss of use and enjoyment of their properties, and increased risk of serious latent illness. See (Doc. No. 12, at ¶¶ 136—141). The alleged breach of the duty of care necessarily occurred more than four years ago when the Defendant failed to adequately reclaim the Plaintiffs' properties. However, any diminution in the value of the Plaintiffs' properties occurred much more recently, when the Plaintiffs filed this action and, in so doing, made public their allegations that the properties are contaminated with elevated levels gamma radiation. The Defendant acknowledges as much in the Motion to Dismiss, where it argues that the Plaintiffs' "irresponsible allegations . . . have themselves damaged their neighbors' property values and their community's good name." (Doc. No. 16, at 2). Since the Plaintiffs' damages occurred when the allegations of this case adversely affected the value of their properties, any claim for negligence or negligence per se is not barred by the statute of limitations.

3. Fraud and Fraudulent Concealment

The statute of limitations for fraud, fraudulent concealment, and negligent misrepresentation is four years. See Fla. Stat., § 95.11(3)(j). The statute of limitations for an action founded upon fraud runs "from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence." Fla. Stat., § 95.031(2)(a). Section 95.031(2)(a) also contains a 12 year statute of repose for claims founded upon fraud. Fla. Stat., § 95.031(2)(a). The 12 year statute of repose for actions founded upon fraud begins to run on "the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered." Fla. Stat., § 95.031(2)(a).

Here, the statute of limitations and repose applicable to the Plaintiffs' claims for fraudulent misrepresentation, fraudulent concealment, and negligent misrepresentation began to run when the Plaintiffs purchased the properties at issue in this case. Since it is undisputed that Mr. Jerue purchased his property on May 4, 2004, or more than 12 years before this case was filed on March 10, 2017, Mr. Jerue's fraud, fraudulent concealment, and negligent misrepresentation claims are barred Section 95.031(2)(a) of the Florida Statutes. Mr. Feist, on the other hand, acquired his property from a related entity on March 31, 2006, which, in turn, purchased the property from a third-party on August 31, 2005. Since the case was filed within the 12 year period following August 31, 2005, Mr. Feist's fraud and fraudulent concealment claims are not barred by the 12 year statute of repose. Moreover, taking as true that Mr. Feist did not learn "of the presence of significantly elevated levels of gamma radiation or radium-226" until March 17, 2017, (Doc. No. 27-2, at 2), Mr. Feist's fraud and fraudulent concealment claims ostensibly fall within the discovery rule pertaining to fraud claims under Section 95.031(2)(a) of the Florida Statutes. Thus, the Court will dismiss Mr. Jerue's fraud, fraudulent concealment, and negligent misrepresentation claims with prejudice, but deny the Motion to Dismiss on statute of limitations grounds as to Mr. Feist.

While the Plaintiffs allege the Defendant's subsequent statements in their marketing materials and in the March 22, 2017 letter also constitute false statements or omissions of fact, the Amended Complaint lacks well-pleaded factual allegations that the Plaintiffs relied on those statements or omissions when they purchased their properties. In fact, as discussed in Section IV. D. 3. below, it is implausible that the Plaintiffs relied on the Defendant's current marketing materials or March 22, 2017 letter in purchasing their properties.

The Plaintiffs tacitly acknowledge the authenticity of, and in fact affirmatively use, the deeds attached to the Motion to Dismiss in their response. See (Doc. No. 27, at 25). Thus, the Court is comfortable taking judicial notice of the deeds attached to the Motion to Dismiss for purposes of this order.

4. Claims founded on the design, planning, or construction of an improvement to real property

A claim founded on the design, planning, or construction of an improvement to real property is subject to a 10 year statute of repose that runs from

the date of actual possession [of the improvement] by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest.
Fla. Stat., § 95.11(3)(c). On its face, the Amended Complaint does not contain a "claim founded on the design, planning, or construction of an improvement to real property." Rather, the Amended Complaint contains claims for environmental restoration under Chapter 376 of the Florida Statutes; fraud, fraudulent concealment and negligent misrepresentation; negligence and negligence per se; private nuisance; strict liability based on an abnormally dangerous activity; and unjust enrichment. Due to the absence of a claim explicitly "founded on the design, planning, or construction of an improvement to real property," the Defendant's argument under Section 95.11(3)(c) is premature. Nevertheless, given the likelihood that the Defendant will assert failure to comply with Section 95.11(3)(c) as an affirmative defense, the Court will provide the parties with some preliminary thoughts regarding the applicability of the 10 year statute of repose.

As an initial matter, Section 95.11(3)(c) only applies if some or all of the Plaintiffs' claims are "founded on the design, planning, or construction of an improvement to real property." None of the foregoing terms are defined in the statute, so the Court must construe the terms of the statute according to their ordinary meaning. See Brittany's Place Condo. Ass'n, Inc. v. U.S. Bank, N.A., 205 So.2d 794, 798 (Fla. 2d DCA 2016) ("One of the most fundamental tenets of statutory construction requires that we give statutory language its plain and ordinary meaning, unless words are defined in the statute or by the clear intent of the legislature."). The parties devote much of their briefing to the proper meaning of the term "improvement." According to Black's Law Dictionary, "improvement" means "[a]n addition to property, usu. real estate, whether permanent or non; esp., one that increases its value or utility or that enhances its appearance." Improvement, BLACK'S LAW DICTIONARY (10th ed. 2014). While the parties express many semantic disagreements, it seems clear that the Plaintiffs' claims are based, in large, part on theories of liability related to the Defendant's "reclamation" of a former phosphate mine into a residential and commercial development. See (Doc. Nos. 12, at ¶¶ 1, 2, 6, 24, 30-32, 38, 42, et seq.). According to Black's Law Dictionary, "reclamation" means '[t]he act or an instance of improving the value of economically useless land by physically changing the land, such as irrigating a desert." Reclamation, BLACK'S LAW DICTIONARY (10th ed. 2014) (emphasis added). Since "reclamation" contemplates the "improvement" of useless property to a higher and better use, and this case involves the reclamation of a former phosphate site into a residential and commercial development, it is not unreasonable to view this entire action as relating to an "improvement to real property."

This, however, is not the end of the matter, as Section 95.11(3)(c) only applies if some or all of the Plaintiffs' claims are "founded on the design, planning, or construction" of such an improvement. Fla. Stat., 95.11(3)(c) (emphasis added). Black's Law Dictionary defines "design" as "1. A plan or scheme. 2. Purpose or intention combined with a plan." Design, BLACK'S LAW DICTIONARY (10th ed. 2014). "Construction," for its part, is defined as "[t]he act of building by combining or arranging parts or elements; the thing so built." Design, BLACK'S LAW DICTIONARY (10th ed. 2014). "Planning" is evidently too rudimentary a term to warrant attention from the editor of Black's Law Dictionary, as the term has not been defined. With the foregoing in mind, a close review of the Amended Complaint reveals little in the way of allegations related to "design, planning, or construction." In fact, those terms appear in the Amended Complaint a total of only four times, of which only paragraph 50 is phrased in the Plaintiffs' own words. (Doc. No. 12, at ¶ 50) (alleging that the "Defendant . . . pursue[d] a plan to reclaim and develop the contaminated 1400 acres . . ." (emphasis added)). The sparseness of the record relating to the "design, planning, or construction" of the properties at issue supports the Court's conclusion that the Defendant's argument regarding Section 95.11(3)(c) is premature. However, with this background in mind, the Court will look forward to a more developed argument regarding Section 95.11(3)(c) at an appropriate future stage of the proceedings.

For the same reasons, the Defendant's argument that this action should be dismissed or stayed pursuant to Chapter 558 of the Florida Statutes is without merit. On its face, this is not a "construction dispute" under Chapter 558 of the Florida Statutes and, while the Court will not foreclose the Defendant from renewing this argument at a future stage of the proceedings, its argument is premature on the current record.

In sum, the Court concludes that the Plaintiffs' claims for environmental restoration under Chapter 376 of the Florida Statutes, as well as their claims for negligence and negligence per se are not barred by any applicable statutes of limitations or repose. Moreover, while Mr. Jerue's claims for fraud, fraudulent concealment, and negligent misrepresentation are barred by the 12 year statute of repose applicable to claims founded upon fraud, Mr. Feist's claims are not, on their face, barred by the statute of limitations or repose applicable to fraud claims. Finally, neither of the Plaintiffs' claims are, on their face, barred by the statute of repose applicable to claims founded on the design, planning, or construction of an improvement to real property.

D. Sufficiency of Plaintiffs' substantive causes of action

In this final section, the Court will discuss each of the Plaintiffs' substantive causes of action and, as to each, address whether the Plaintiffs have stated a claim upon which relief can be granted.

1. Chapter 376 Claim

As noted previously, Section 376.313(3) of the Florida Statutes creates a private cause of action "for all damages resulting from a discharge or other condition of pollution covered by [Sections] 376.30 - 376.317 . . ." Fla. Stat., § 376.313(3) (emphasis added); see also Curd, LLC, 39 So.3d at 1221-22 (noting that in Aramark Uniform & Career Apparel, Inc. v. Easton, 894 So.2d 20 (2004), the Florida Supreme Court recognized that Section 376.313(3) creates a private cause of action). With respect to "a discharge or other condition of pollution," Section 376.301(13) defines "[d]ischarge" broadly to include "any spilling, leaking, seeping, pouring, misapplying, emitting, emptying, releasing, or dumping of any pollutant or hazardous substance which occurs and which affects lands and the surface and ground waters of the state." Fla. Stat., § 376.301(13) (emphasis added). "Hazardous substances," in turn, are defined by reference to CERCLA as, among other things, "any hazardous waste having the characteristics identified under or listed pursuant to . . . 42 U.S.C. § 6921," and "any hazardous air pollutant listed under . . . 42 U.S.C. § 7412." Fla. Stat., § 376.301(21); 42 U.S.C. § 9601(14). "Solid waste from the extraction, beneficiation, and processing of ores and minerals, including phosphate rock" are referenced as constituting "hazardous waste" under 42 U.S.C. § 6921(b)(3)(A)(ii), while "[r]adionuclides (including radon)" are included in the "[l]ist of pollutants under 42 U.S.C. § 7412(b)(1). See 42 U.S.C. §§ 6921(b)(3)(A)(ii) & 7412(b)(1) (emphasis added). Finally, "[p]ollutants" are defined to include "any 'product' as defined in [Section] 377.19, pesticides, ammonia, chlorine, and derivatives thereof, excluding liquefied natural gas." Fla. Stat., § 376.301(36).

As for the types of discharges or other conditions of pollution "covered by Section 376.30 - 376.317," Section 376.302(1)(a) of the Florida Statutes provides that "[i]t shall be a violation of this chapter and it shall be prohibited for any reason: (a) To discharge pollutants or hazardous substances into or upon the surface or ground waters of the state or lands, which discharge violates any departmental 'standard' as defined in [Section] 403.803(13)." Fla. Stat., § 376.302(1)(a). Section 376.305(1) goes on to state that "[a]ny person discharging a pollutant as prohibited by [Sections] 376.30 - 376.317 shall immediately undertake to contain, remove, and abate the discharge to the satisfaction of the department." Fla. Stat., § 376.305(1).

According to the Plaintiffs, the Defendant has violated Sections 376.302(1)(a) and 376.305(1) by discharging phosphatic slag material into the soil located at the property. (Doc. No. 12, at ¶¶ 8, 47-48). The Plaintiffs contend that this "slag waste material" contains "Radium-226 and other radionuclides" and, as a result, constitutes a "hazardous substance" under Section 376.301(21) of the Florida Statutes and 42 U.S.C. § 7412(b)(1). The Plaintiffs further contend that the Defendant's reclamation efforts constituted a "discharge" of such substances based on their allegations that the Defendant "fill[ed] in [its] mines with the highly radioactive material." (Doc. No. 12, at ¶ 47). Upon review, the foregoing allegations are sufficient to state a claim under Section 376.313(3) of the Florida Statutes. At a minimum, the allegations in the Amended Complaint, accepted as true, demonstrate that there has been a "discharge" of "hazardous substances into or upon the surface or ground waters of the state or lands" under Sections 376.313(3) and 376.302(1)(a) of the Florida Statutes. Whether, on the other hand, "[a]ny person [is] discharging a pollutant" in violation of Section 376.305(1) is a closer question because the alleged discharge occurred years ago when the Defendant allegedly "fill[ed] in [its] mines with the highly radioactive [slag] material." (Doc. No. 12, at ¶47). However, given that the Plaintiffs have plausibly alleged a cause of action under Section 376.313(3) based on alleged violations of Section 376.302(1)(a), the Plaintiffs have adequately stated a claim for strict liability under Chapter 376 of the Florida Statutes.

In its reply, the Defendant tacity acknowledges that Chapter 376 of the Florida Statues applies retroactively to any alleged "discharges" that pre-dated the enactment of the statute in 1976. See (Doc. No. 30, at 8).

2. Negligence and Negligence Per Se

The elements of a negligence claim are: (1) duty, (2) breach, (3) causation, and (4) damages. Curd, 39 So.3d at 1227. With respect to the duty element, "Florida, like other jurisdictions, recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others." McCain v. Fla. Power Corp., 593 So.2d 500, 503 (Fla. 1992). Under this rule, "each defendant who creates a risk is required to exercise prudent foresight whenever others may be injured as a result" of her conduct. Id. "This requirement of reasonable, general foresight is the core of the duty element." Id.

According to the Third Restatement, landowners owe a general duty of reasonable care when their conduct, or an artificial condition on the land, creates or poses a "risk to entrants on the land." Restatement (Third) of Torts § 51(a) & (b) (Am. Law. Inst. 2012). The comments to the Third Restatement indicate that "[a] former possessor who creates a risk of harm when in possession of the land is subject to the ordinary duty of reasonable care . . . for those risks the former possessor created in the condition of the land and that remain after possession is relinquished to another." Restatement (Third) of Torts § 51 cmt. t (Am. Law. Inst. 2012). On a related (and, with respect to this case, particularly relevant) note, the Third Restatement takes the position that

vendors of land [must] use reasonable care to disclose to purchasers any conditions that: (1) pose a risk of physical harm to entrants on the land; (2) exist on the premises when possession is relinquished; (3) are latent or
concealed and unknown to the new possessor; and (4) are known or should be known to the vendor.
Restatement (Third) of Torts § 51 cmt. t (Am. Law. Inst. 2012).

For the reasons explained in Section IV. A. of this order, despite the concern of some that the State's contract law is in serious danger of "drowning in a sea of tort," Tiara, 110 So.3d at 413 (Canady, J., dissenting), this Court is bound to apply Florida law as decided by the Florida Supreme Court. As a result, the Court must accept that the Plaintiffs are entitled to pursue purely economic damages under a negligence theory and, instead, focus on whether the Defendant owes a duty of care to the Plaintiffs. On this point, the case of Virgilio v. Ryland Grp., Inc. is instructive. The Virgilio case involved a subdivision in Orlando, Florida that, unknown to the residents of the subdivision, was developed adjacent to land that was "used as a bombing range during World War II and remain[ed] laden with unexploded bombs, ammunition, ordinance, and related chemicals." 680 F.3d 1329, 1332 (11th Cir. 2012). When the existence of the bombing range became known to the public, the residents' homes lost considerable market value and, as a result, they filed a class action lawsuit against the developers and builder of their community for diminution of their property values. Id. The plaintiffs eventually reached a $1.2 million settlement with the builder who actually sold them their homes, but the court dismissed the plaintiffs' claims for fraudulent concealment and negligence against the developers, with whom they did not deal directly. Id. at 1332. The plaintiffs appealed, and the Eleventh Circuit affirmed the trial court. Id. at 1333-1341.

As for the claim of negligence, the Eleventh Circuit observed that while Florida law "recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others," a duty is "more likely to be imposed . . . where the plaintiff has suffered personal injury or property damage." Id. at 1339. "Where the plaintiff seeks only the recovery of an economic loss, the duty element of negligence law serves as an important barrier to over-extension of liability." Id. This duty is all the more important where "the plaintiff seeks to impose on the defendant an affirmative duty to disclose facts to another." Id. at 1340. Concerned that there was no practical limit on the scope of the duty requested by the residents, the court affirmed the dismissal of the claim of negligence based on the absence of any duty to warn the public at large of negative information affecting the value of the subdivision. Id. at 1340-41.

Here, like in Virgilio, the Plaintiffs seek to recover under a theory of negligence for economic losses caused by the Defendant's negligent failure to protect them from conditions negatively affecting the value of their property. Moreover, similar to the residents in Virgilio, the Plaintiffs did not purchase their properties directly from the Defendant. If those were the only facts of record, the Court would be inclined to agree that the Plaintiffs have failed to identify a duty owed to them by the Defendant. However, unlike in Virgilio, the Plaintiffs do not merely complain that the Defendant negligently failed to warn them of conditions negatively affecting the value of their properties. Instead, the Plaintiffs go one step further, accusing the Defendant of actually creating the condition of contamination negatively affecting their property values. As noted previously, the Third Restatement takes the position that

vendors of land [must] use reasonable care to disclose to purchasers any conditions that: (1) pose a risk of physical harm to entrants on the land; (2) exist on the premises when possession is relinquished; (3) are latent or concealed and unknown to the new possessor; and (4) are known or should be known to the vendor.
Restatement (Third) of Torts § 51 cmt. t (Am. Law. Inst. 2012). Since Florida law does not require plaintiffs to allege "physical harm" to state a claim for negligence, it is reasonable to infer that the Florida Supreme Court would extend the duty of vendors of land to economic losses and medical monitoring costs necessitated by a developer's negligence.

Even more fundamentally, it is not clear that Virgilio remains good law following the Florida Supreme Court's decision in Tiara. The Virgilio court went to great lengths to avoid the obvious negative implications of the tendency towards narrowing Florida's economic loss rule pre-Tiara, focusing on the critical role "the duty element of negligence law serves as an important barrier to over-extension of liability." 680 F.3d at 1339. However, in so doing, the Eleventh Circuit relied on policies espoused in Judge Altenbernd's decision opposing Florida's formulation of the economic loss rule in Monroe and Justice Cantero's concurrence in American Aviation, which similarly sought to lessen the ramifications of Florida's narrowing of the economic loss rule by emphasizing that the duty element remains "a strong filter in these cases." Id. at 1340. Respectfully, it appears that the Eleventh Circuit was attempting to make workable Florida's narrowing of the economic loss rule by focusing on the relationship (or, rather, lack thereof) between the residents and developers in that case. Id. However, given the Florida Supreme Court's expansive definition of the duty owed relative to the phosphate business in Curd, 39 So.3d at 1228, and its subsequent, further narrowing of the economic loss rule in Tiara, this Court is skeptical that the Florida Supreme Court would refrain from recognizing a duty based on the facts alleged in the Amended Complaint.

The concept that the duty element remains such a "strong filter" that it is unnecessary to enforce the economic loss rule has some superficial appeal but, on balance, is a fool's errand. Courts and parties would greatly benefit from enforcement of the bright-line economic loss rule in lieu of having to engage in particularized duty analyses on an ad hoc basis across the unlimited number of possible factual scenarios that could allegedly give rise to a duty. Abandonment of the economic loss rule in favor of a more rigorous duty analysis will undoubtedly lead to inconsistent precedent and have an adverse impact on parties' reliance interests.

To further illustrate this point, imagine that unlike the Plaintiffs in this case, who seek purely economic damages, a resident of the Defendant's development alleged she contracted an aggressive form of cancer due to increased gamma radiation levels at the property. Further imagine that the hypothetical plaintiff filed a negligence action against the Defendant, alleging that the Defendant's failure to properly remediate the property and/or warn her of the risks attendant to living at the property caused her cancer. Taking those allegations as true, the Court would be hard-pressed to find, as a matter of law, that the Defendant owed no duty of care to this hypothetical plaintiff when developing the property. Unfortunately for the Defendant, absent the lack of allegations of bodily harm, these are exactly the allegations of the Amended Complaint. Viewed from this perspective, what principled reason would the Court have to deny the existence of a duty where the plaintiff suffered purely economic damages, but find that such a duty exists under identical facts accompanied by allegations of bodily injury? The lack of any satisfying answer to this question underscores the unworkability of the Florida Supreme Court's formulation of the economic loss rule. However, as the Court has already lamented in prior sections of this order, the Court is required to apply Florida precedent. Accordingly, the Motion to Dismiss must be denied as to the negligence claim.

Negligence per se is a theory of liability that "relies on a specific statutory standard to pretermit reference to the more general reasonable-care standard for adjudicating the question of breach of duty." Restatement (Third) of Torts § 38 cmt. d (Am. Law. Inst. 2012) (emphasis in original). Stated differently, under the theory of negligence per se, the statutory standard "displace[s] the more general reasonable-care requirement." Id. Since the Court has already concluded that the Plaintiffs have stated a claim for negligence, it necessarily follows that the Plaintiffs have also stated a claim for negligence per se. Whether, in fact, a statutory standard of care displaces the more general reasonable-care requirement identified above is a question for a future stage of the proceedings. --------

3. Fraud and Fraudulent Concealment

A claim for fraudulent misrepresentation requires proof of the following elements: "(1) a false statement concerning a material fact; (2) the representor's knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and, (4) consequent injury by the party acting in reliance on the representation." Johnson v. Davis, 480 So.2d 625, 627 (Fla. 1985). A claim for fraudulent concealment, on the other hand, can be maintained where "the seller of [real property] knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer," and the seller fails to disclose those facts to the buyer. Id. at 629.

Here, the Plaintiffs identify three instances of fraudulent misrepresentation or concealment allegedly committed by the Defendant. First, the Plaintiffs contend that the Defendant misrepresented in marketing and promotional materials that "its phosphate mining lands were . . . habitable, safe, high quality, good investments, [and] good values," among other things. (Doc. No. 12, at ¶ 155). Second, the Plaintiffs allege that the Defendant made further misrepresentations or omissions regarding the extent of gamma radiation present at the property in its March 22, 2017 letter to residents. (Doc. No. 12, at 153). Third, while not alleged in the Amended Complaint, the Plaintiffs argue in their response that the Defendant's representations in the development agreement with the State fail "to disclose the true character, quality, and risks posed by contamination of the land." (Doc. No. 26, at 14). Instead, the Plaintiffs argue that the statements in the development agreement "perpetuate the [Defendant's] deception." (Doc. No. 27, at 14).

Upon review, the Plaintiffs have failed to state a claim for fraud based on allegations that the Defendant made misleading statements in its marketing materials and/or the March 22, 2017 letter. While the Plaintiffs cursorily allege that they "relied" on the Defendant's "misinformation" or "misrepresentations," the Amended Complaint lacks well-pleaded allegations that the Plaintiffs relied on statements made in the marketing materials or March 22, 2017 letter when purchasing their properties. Quite the opposite, given that the Plaintiffs did not purchase their properties directly from the Defendant, it is implausible that the Plaintiffs relied on statements made in the March 22, 2017 letter when they purchased their properties during the early 2000s. Moreover, given the lack of allegations regarding the Defendant's marketing materials at the time the Plaintiffs purchased their properties, it is implausible to suggest that the Plaintiffs relied on the Defendant's current marketing materials when they purchased their properties.

Nevertheless, turning to the statements in the development agreement, it is plausible that the Plaintiffs relied on representations in the development agreement regarding the Defendant's reclamation efforts and procedures when deciding to purchase their homes, as the development agreement has been made part of the chain of title. Thus, to the extent that the Plaintiffs are prepared to allege (with specificity) that they relied on false statements concerning material facts in the development agreement that the Defendant intended downstream purchasers such as the Plaintiffs to rely on, it may be possible for the Plaintiffs to state a claim for fraud or fraudulent concealment. This is because unlike in in Virgilio, where the Eleventh Circuit held that the duty of seller of a home to disclose facts materially affecting the value of the property that are not readily observable and are not known to the buyer does not extend to a seller who does not deal directly with the buyer, Virgilio, 680 F.3d at 1336, the inclusion of the development agreement in the chain of title provides a basis for linking the Defendant's alleged misrepresentations to the Plaintiffs' decisions to purchase their properties. While the Court does not purport to pre-judge the accuracy of any statements in the development agreement, the Court is satisfied that the Plaintiffs should be afforded an opportunity to re-plead (with specificity) their fraud and fraudulent concealment claims based on alleged misrepresentations or omissions in the development agreement.

4. Negligent Misrepresentation

"To state a claim for negligent misrepresentation, [the] plaintiff must allege: (1) a misrepresentation of material fact; (2) that [the] defendant knew of the misrepresentation, made the misrepresentation without knowledge of its truth or falsity, or should have known the representation was false; (3) that [the] defendant intended to induce another to act on the misrepresentation; and (4) that an injury resulted in justifiable reliance upon the misrepresentation." Principal Bank v. First Am. Mortg., Inc., 2012 WL 473507, at *5 (M.D. Fla. Feb. 14, 2012). Here, for the same reasons discussed above with respect to the Plaintiffs' claims for fraud and fraudulent concealment, the Amended Complaint lacks well-pleaded allegations that the Plaintiffs relied on the Defendant's alleged misrepresentations. However, the Court does not believe that a claim for negligent misrepresentation is foreclosed to the extent the Plaintiffs relied on alleged misrepresentations contained in the development agreement. Thus, the Plaintiffs may attempt to re-plead (with specificity) their negligent misrepresentation claim by reference to the development agreement.

5. Private Nuisance

"[A] private nuisance [is] a nontrespassory invasion of another's interest in the private use and enjoyment of land." Phila. Elec. Co. v. Hercules, Inc., 762 F.2d 303, 313 (3d Cir. 1985). The historical role of private nuisance law has been "a means of efficiently resolving conflicts between neighboring, contemporaneous land uses." Id. at 314 (emphasis in original). As a result, private nuisance law has been restricted to situations involving "discordant land uses . . . and not as an additional type of consumer protection for purchasers of realty." Id.(emphasis in original). Thus, courts have refused to permit purchasers of property to sue former owners for environmental pollution using a theory of private nuisance. Id. at 315; see also Morgan, 779 So.2d at 507 (rejecting the plaintiff's theory of private nuisance based upon alleged environmental pollution on her own property that existed at the time she purchased the land). Here, the Plaintiffs' claim of nuisance is predicated on the "presence of contamination [on their properties] in the form of hazardous and toxic substances." (Doc. No. 12, at ¶ 165). In an attempt to avoid the ramifications of Hercules and Morgan, the Plaintiffs couch their allegations in terms of the Defendant's "past, present and/or continuing acts and/or omissions." (Doc. No. 12, at ¶ 164). However, those allegations are mere legal conclusions, and the fact of the matter is that the presence of contamination was allegedly caused by the Defendant's prior "use [of] slag waste material to 'reclaim' the mined lands." (Doc. No. 12, at ¶ 47). Since the Plaintiffs' nuisance claim is based on a condition of pollution that existed at the time they purchased their land, the Plaintiffs' claim for private nuisance is subject to dismissal with prejudice.

6. Strict Liability

Florida law recognizes the concept of strict liability for "ultrahazardous" or "abnormally dangerous" activities. See, e.g., Cities Serv. Co. v. State of Fla., 312 So.2d 799, 803 (Fla. 1st DCA 1975) (holding that the "impounding of billions of gallons of phosphatic slime behind earthen walls which are subject to breaking even with the exercise of the best care" constitutes "a non-natural use of the land such as to invoke the doctrine of strict liability."). Under the current formulation of that rule, "[a]n actor who carries out an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity." Restatement (Third) of Torts § 20 (Am. Law. Inst. 2012). "An activity is abnormally dangerous if: (1) the activity creates a foreseeable and highly efficient risk of physical harm even when reasonable care is exercised by all actors; and (2) the activity is not one of common usage." Id. "Whether [an] activity is abnormally dangerous is determined by the court, applying the factors [set forth above]." Restatement (Third) of Torts § 20 cmt. I (Am. Law. Inst. 2012). "When appropriate, the court can rely on judicial notice in order to acquire information about a particular activity." Id. "Alternatively, that information can be provided by evidence, especially expert testimony." Id.

Here, the Court does not believe that, generally speaking, the reclamation of a former phosphate mine into a residential development is an abnormally dangerous activity. For starters, no Florida court has recognized a cause of action for strict liability based on such a theory. To the contrary, the Second District Court of Appeal in Morgan rejected a claim "that reclamation of phosphate lands is an ultrahazardous activity that justifies the imposition of strict liability for . . . alleged economic injuries suffered by a subsequent purchaser of the land." Morgan, 779 So.2d at 505. Moreover, the State of Florida, through the Florida Department of Community Affairs and the Central Florida Regional Planning Council, has approved "control technology to reduce the exposure of the occupants [of the development] to the influx of radionuclides . . . by the use of certain building techniques," including using "ventilated crawl space, monolithic slab or other control technology . . . to mitigate any potential adverse impacts due to radon gas emissions or other radiation effects." (Doc. No. 16-2, at 6-7). The adoption of such standards demonstrates that the reclamation of land used for phosphate mining for residential use can be accomplished safely "when reasonable care is exercised by all actors." See Restatement (Third) of Torts § 20 (Am. Law. Inst. 2012). Stated simply, it is implausible that the State of Florida would have put its imprimatur on the reclamation of the properties at issue if it believed such use constituted an "abnormally dangerous activity." Consequently, the Plaintiffs' strict liability claim is subject to dismissal with prejudice.

7. Unjust Enrichment

"The elements of an unjust enrichment claim are 'a benefit conferred upon a defendant by the plaintiff, the defendant's appreciation of the benefit, and the defendant's acceptance and retention of the benefit under circumstances that made it inequitable for him to retain it without paying the value thereof.'" Fla. Power Corp. v. City of Winter Park, 887 So.2d 1237, 1241 n.4 (Fla. 2004). Here, the Plaintiffs allege that "Plaintiffs . . . conferred a benefit on Drummond by buying or renting the residential and commercial properties at issue." (Doc. No. 12, at ¶ 190). However, this allegation is belied by the Plaintiffs' chain of title, which the Court already took judicial notice of for purposes of this order, demonstrating the Plaintiffs did not purchase their properties from the Defendant. Since the Plaintiffs have not plausibly alleged that they transferred money, property, or some other benefit to the Defendant, the Plaintiffs' claim for unjust enrichment is subject to dismissal. To the extent the Plaintiffs believe they can identify some other form of benefit provided to the Defendant, they may attempt to re-plead their claim consistent with this order.

8. Medical Monitoring Claim

"[A] court of equity may establish a medical monitoring plan under prescribed circumstances to a[ss]ess the condition of plaintiffs." Jacobs v. Osmose, Inc., 2002 WL 34241682, at *2 (S.D. Fla. Jan. 3, 2002).

[T]o establish a claim for a medical monitoring fund: the plaintiffs must prove 1) exposure greater than the normal background levels; 2) to a proven hazardous substance; 3) caused by the defendant's negligence; 4) as a proximate result of the exposure, plaintiff has significantly increased risk of contracting a serious latent disease; 5) a monitoring procedure exists that makes the early detection of the disease possible; 6) the prescribed monitoring regime is different from that normally recommended in the absence of exposure; and 7) the prescribed monitoring regime is reasonably necessary according to contemporary scientific principles."
Id. at *3 (internal quotations omitted).

While some states view medical monitoring as "a special tort remedy available if --- and only if --- an underlying tort is established," John T. Chester, Esq., No harm, No Foul in New Jersey: No-injury Monitoring Rebuffed, 24 No. 11 Andrews Pharma. Litig. Rep. 10, at *2 (Dec. 29, 2008) (emphasis in original), Florida apparently "recognize[s] a cause of action for future expenses for medical diagnosis." Petito v. A.H. Robins, Co., 750 So.2d 103, 105 (Fla. 3d DCA 1999) (emphasis added). Here, despite making various references to a claim for medical monitoring, and seeking medical monitoring in the WHEREFORE clause of the Amended Complaint, the Plaintiffs have not plead a standalone cause of action for medical monitoring. Since Florida appears to view a claim for medical monitoring as a cause of action, the Plaintiffs have failed to state a claim for medical monitoring by not pleading it as a standalone claim. Accordingly, the Motion to Dismiss must be granted with respect to the Plaintiffs' request for medical monitoring. However, the Plaintiffs may attempt to correct this pleading deficiency by affirmatively pleading their claim in any second amended complaint.

V. Conclusion

Accordingly, it is

ORDERED that the Motion to Dismiss is GRANTED IN PART AND DENIED IN PART as follows:

(1) the Motion to Dismiss is DENIED as to Count I of the Amended Complaint;

(2) the Motion to Dismiss is DENIED as to Count II of the Amended Complaint;

(3) the Motion to Dismiss is GRANTED WITH PREJUDICE as to Mr. Jerue's claims under Count III of the Amended Complaint, and GRANTED WITH LEAVE TO AMEND as to Mr. Feist's claims under Count III of the Amended Complaint;

(4) the Motion to Dismiss is GRANTED WITH PREJUDICE as to Mr. Jerue's claims under Count IV of the Amended Complaint, and GRANTED WITH LEAVE TO AMEND as to Mr. Feist's claims under Count IV of the Amended Complaint;

(5) the Motion to Dismiss is GRANTED WITH PREJUDICE as to Count V of the Amended Complaint;

(6) the Motion to Dismiss is GRANTED WITH PREJUDICE as to Count VI of the Amended Complaint;

(7) the Motion to Dismiss is GRANTED WITH LEAVE TO AMEND as to Count VII of the Amended Complaint; and

(8) the Motion to Dismiss is GRANTED WITH LEAVE TO AMEND as to any claim for medical monitoring.

It is further ORDERED that any second amended complaint shall be filed within 14 days from entry of this order.

DONE and ORDERED in Chambers, in Tampa, Florida this 17th day of August, 2017.

/s/_________

ELIZABETH A. KOVACHEVICH

UNITED STATES DISTRICT JUDGE Copies furnished to: Counsel of Record


Summaries of

Jerue v. Drummond Co.

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION
Aug 17, 2017
Case No: 8:17-cv-587-T-17AEP (M.D. Fla. Aug. 17, 2017)
Case details for

Jerue v. Drummond Co.

Case Details

Full title:JOHN J. JERUE, On Behalf of Himself and all Others Similarly Situated and…

Court:UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

Date published: Aug 17, 2017

Citations

Case No: 8:17-cv-587-T-17AEP (M.D. Fla. Aug. 17, 2017)

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