Who Says the King Can Do No Wrong? Finding More Ways to Recover Losses

By Steven A. Blum   |   February 22, 2018

When I returned to Glen Oaks after the evacuation, I was still stunned by the physical and emotional devastation as neighbors mourn the loss of friends, relatives, their homes, and nature itself. Even as we begin to pick up the pieces, the weather forecast promised rain which turned out to be sprinkles not a storm.

But more rain means more sleepless nights in Montecito. My geomorphologist (sort of a mountain man hydrologist) tells me that there is still plenty of debris in the mountains, which can continue to move down creeks, debris basins, and roads for three to five years while the hydrophobic soil barrier breaks down – intense heat from the wildfire melted plant material to create a waxy slip-and-slide surface. Meanwhile, hundreds of large trucks move through Montecito nearly 24/7, busy removing debris before the next rainstorm hits. 

While we brace for more rain, some (but not all) insurance companies have been dragging their feet to reimburse property owners for relocation and repairs. Some have simply ignored homeowners’ calls or delayed coverage by engaging in endless “investigation” into the obvious causes of the mudslides. 

California Insurance commissioner Dave Jones has continued to call out insurers by reiterating that “the indications are that the [Thomas] fires did cause the mudslides and that [the insurers] should pay claims.” As I suggested in my last two articles, if the facts show that a fire, covered by a typical homeowners’ insurance policy, was the “efficient proximate cause” of a later mudslide, then mudslide damage may be covered under a homeowners’ insurance policy.

Many homeowners will have less insurance than necessary to repair and replace what they lost, including retaining walls and other outdoor structures to protect property from further damage in future floods. “Underinsured” is the word that describes this situation, which is most often due to policy limits that are too low, or lack of coverage for certain parts of your property that need repair.

Moreover, homeowners’ insurance usually only covers repairs to the residential structure itself, contents, and relocation. What about resources to restore the very land that your home sits on, or recovering the loss of property value resulting from the “stigma” that remains from physical damage, or building improvements to protect your home from future rainstorms? Where will you get the money to achieve full recovery and protect your family from the next mudslide?

Constitutional Property Rights

To answer this question, I’ve been sharing ways to seek recovery for your losses from sources other than your insurer. In my first article (MJ volume 24, issue 4, page 22), I discussed inverse condemnation, which is a constitutional remedy for the damaging of private property caused by a public project. The United States Constitution and the California Constitution prohibit private property from being “taken or damaged” for public use without the payment of just compensation.

When a public project takes or damages private property and the government fails to bring a direct condemnation (also called eminent domain) proceeding, the property owner may file an inverse condemnation lawsuit. The only difference between a direct and inverse condemnation is who initiates the action. In both actions, the result is the same – the property owner receives compensation for the invasion of his private right.

The theory of inverse condemnation is to distribute the cost of public improvements throughout the community – no private property owner should bear an unequal share of a public project (and that includes projects owned by utilities like Edison.)

But the involvement of public works does not always mean there is inverse condemnation liability. The public project must be operating as intended when it caused the damage. If a water main breaks in the ordinary course of its operation, then there could be inverse condemnation liability. However, if a water district employee accidentally breaks the water main with a sledgehammer, then the government is probably not liable for inverse condemnation.  Likewise, if the water district’s contribution to the sliding is a mere “drop in the bucket,” that’s not enough to constitute a legal cause of resulting damage.

Government Tort Claims

So, inverse condemnation is not a cure-all. Other than inverse condemnation, a property owner may have viable government tort claims such as trespass, nuisance, or dangerous condition of public property (the phrase for government negligence). 

While inverse condemnation plaintiffs are limited to recovering the fair market value of their property, tort plaintiffs enjoy a greater measure of recovery, including damages for personal injury and emotional distress. That means that the inverse condemnation theory does not provide full recovery of damages in cases involving personal injury or wrongful death. The injured person (or the survivor in a wrongful death case) needs to join claims for inverse condemnation and government tort in the same case, if they arise from the same government act or omission.  

When you sue a government agency, you first have to file a special claim (called an “administrative claim”) with the government office or agency before you file in court.  For personal injury or wrongful death, you must file your administrative claim within 6 months of the date of the injury.  For real property damage cases, you must file your administrative claim within 1 year of the date the real property damage occurred.

For more than two centuries of our nation’s history, sovereign immunity protected the federal and state governments and their employees from tort lawsuits. The concept of sovereign immunity derives from the common law maxim Rex Non Potest Peccare – “the King can do no wrong.” 

The essential notion is that it contradicts the king’s sovereignty if he is sued in his own courts. In the context of a monarchy, this makes sense because the King is all-powerful and his subjects must bend to his will. (This all goes for queens too.) However, in our constitutional democracy, the power of the sovereign is derived directly from the people, and the judicial limitation on suits against the government creates tension between two elements of constitutionalism: government accountability and the need to shield the government from limitless tort litigation.

As our nation evolved, so did our attitude toward holding the government more accountable for its misdeeds. In 1946, the federal government passed the Federal Tort Claims Act waiving sovereign immunity and allowing suits against the federal government in limited actions. Many states, including California, soon followed. In 1963, the California Legislature adopted the Tort Claims Act governing suits against a public entity.

As a matter of law, “a public entity is not liable for an injury” except as provided by statute. The purpose of the California Tort Claims Act is to carve out an exception to the California State’s sovereign immunity; specifically to allow suits in a limited number of actions. For example, Government Code section 835 specifically provides, “a public entity is liable for injury caused by a dangerous condition of its property.” The statutes also provide for causes of action such as trespass, negligence, or nuisance.

The Tort Claims Act also includes a long list of immunities that protect the sovereign State, its employees, and other public entities from being sued. For example, there are the discretionary immunity, permit or license immunity (injuries resulting from the issuance, denial, revocation, or suspension of a permit or a license), natural condition/unimproved public property immunity (for injuries that are caused by natural conditions on unimproved public property, such as rocks tumbling down hills and crushing homes), inspection immunity (public entities are not liable for failure to inspect, or for inadequate or negligent inspection of property), and the list goes on. 

The broadest immunity is for the discretionary acts and omissions of public employees.  The determination of whether a government act is discretionary must be made on a case-by-case basis.  The availability of immunity turns on whether the public employee’s act or omission was an exercise of discretion at the planning rather than operational level of governmental decision making; in other words, whether the case will turn on the quality of basic policy decisions that the judiciary should refrain from second-guessing.  For example, there would be no liability for deciding to adopt a county flood-control plan, but liability may exist for negligently implementing the flood plan. A subtle but important distinction. 

That’s just to give you a flavor of public immunities. As with inverse condemnation law, government tort claims law can be tricky for the uninitiated and unpracticed. And just as inverse condemnation law is formulated through 150 years of case law, government tort claims law involves convoluted statutes and procedural requirements. 

This is the fourth in a series of articles about the law and the Montecito mudslides. You can read the first three articles on montecitojournal.net, volume 24, issues 4, 5, and 6, or email: blum@blumcollins.com.

Next week: legal ethics and ambulance chasing.


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