Anticipating a Surge: South Florida Braces for Rise of Floods and Lawsuits
“You have to draft or craft a lawsuit that is going to actually get something done,” Miami Attorney Wayne M. Pathman said.
December 12, 2023
By Lisa Willis
Weather officials predict that by year-end, Fort Lauderdale may very well take the dubious honor of the wettest city in the country for 2023. Miami isn’t far behind, prompting one South Florida attorney to send an alert for a possible flood of litigation in the coming year.
“It’s a different type of litigation because you’re not suing a business or suing your neighbor or something like that; you’re suing the government,” said Attorney Wayne M. Pathman, managing partner of Miami-based Pathman Schermer Tandy.
“So the first thing I have to establish is what is the government’s responsibility to eradicate or provide services to deal with the problem,” Pathman said.
Record rainfall caused residents in Broward County to experience the wettest year ever recorded, with nearly 111 inches of precipitation to date, shattering the 1947 record of 102 inches of rain, according to the National Weather Service.
The rising flood waters caused 10′s of millions in damage to homes, businesses, and vehicles in Broward and Miami-Dade counties.
Many residents are blaming antiquated infrastructure in Miami-Dade and Broward Counties, compounded by rising sea levels, king tide, and stormwater flooding.
The attorney said a few lawsuits against some government entities have already been filed.
State Government Helping Hand
To help Floridians navigate the recent uptick in insurance premium costs after the flooding Gov. Ron DeSantis proposed a $22 million infusion of funds that would aid in providing an exemption on insurance premium taxes on flood insurance policies.
Pathman said a lot needs to be done, but it is an uphill battle.
“Lawsuits will get filed,” he said. “I think that it could be an individual person, it could be a neighborhood, it could be a number of things that could potentially be filed depending upon the responsible party … it could be the state government, county government, local government to improve roadways or to improve stormwater capacity to deal with the flooding, but there may not be -in the future- a solution for every roadway.”
Pathman is a Florida lawyer with over 30 years of experience in land use, zoning, environmental law, water law, and commercial litigation.
He is serving his sixth term as chairman of the City of Miami’s Climate Resilience Committee. He was elected the committee’s first chair in 2015 when the panel was formed and named the Sea Level Rise Committee. He frequently advises the South Florida community on the economic impact of rising sea levels.
“The issue will be where there might be a damage claim say in a particular neighborhood, if it’s constantly flooding, and the federal government or private insurance companies decide, ‘well, we won’t insure in that area anymore, because it’s too high of a risk,’ but the risk could be eradicated if the government did something to prevent the problem from happening all the time, then that might create some kind of lawsuit that government’s not doing enough.”
Florida Sues the Federal Government for Change
In September, attorneys for 10 states, including Florida, filed a multi-district litigation lawsuit in Federal Court in Louisiana arguing that the Federal Emergency Management Agency’s new risk estimates concerning the National Flood Insurance Program have raised flood insurance prices too high.
In mid-September, the judge heard arguments in the lawsuit against FEMA over Risk Rating 2.0, the methodology FEMA now uses to determine what flood insurance premiums will be.
Attorney Elizabeth Baker Murrill of Fowler White Boggs in Tampa was listed as lead attorney for Florida as the plaintiff. She did not return calls for comment before press time.
To date, no ruling has been made.
Court records filed in the lawsuit said the National Flood Insurance Program included nearly 1.4 million policies in Florida, with a total coverage of nearly $367 billion.
Many financial institutions require homeowners who have mortgages to carry flood insurance.
FEMA claims the new system lowered prices for about 20% of specific customers. Still, the lawsuit claims the move also led to skyrocketing rate increases for coastal homeowners paying subsidized prices in states like Florida and Louisiana.
A lifelong Miami Beach resident, Pathman has extensive experience representing businesses, developers, and individuals before administrative and regulatory bodies at the municipal, state, and federal levels in land use, zoning, and environmental matters.
Pathman said the tricky part in navigating through the flood of litigation to come is that governments have sovereign immunity.
“You have to draft or craft a lawsuit that is going to actually get something done,” Pathman said. “And most of the lawsuits that I see today would not necessarily mandate damages, but action to do something to implement a program to come up with a plan to fix an old antiquated stormwater system that’s not able to handle today’s capacity.”