Facts

The federal government filed a civil lawsuit against Berry Engineering General Contractors Inc, and Mendez Concrete, a subcontractor. The two companies were performing construction work on a boat launch in the Lake Piru Recreation Area when a wildfire occurred. The Piru Fire injured or destroyed 32,534 acres of National Forest System lands as well as other property of the United States.

PLAINTIFF'S CONTENTIONS:
The government claimed that employees of defendants started the fire when sparks from a cutting tool set nearby brush on fire, resulting in a wildfire injured or destroyed 32,534 acres of National Forest System lands as well as other property of the United States. The government contended that the employees should have had a fire extinguisher.

DEFENDANT'S CONTENTIONS:
Mendez Concrete admitted from the outset that the Piru fire was ignited as a result of the unauthorized and unforeseen conduct of one of its employees who utilized a chop saw to cut a bolt. Therefore, Mendez Concrete conceded it was liable for starting the Piru fire under the doctrine of respondeat superior.

Fire fighting agencies including the United States Forest Service promptly responded to the Piru fire which was burning in grass and light to moderate brush. Mendez Concrete contended that firefighting forces knew from the outset that there was a red flag warning weather forecast and that the fire needed to be extinguished before the winds picked up. The fire records indicate that by October 25, 2003, at 4:00 p.m., the fire was 90 percent contained and that full containment was expected by 6:00 p.m. on October 26. However, on the night of October 25, a slopover fire was reported at the northwest corner of the fire perimeter.

Mendez Concrete contended that, had the firefighting forces properly deployed the available resources, the slopover fire could have been contained. In particular, Mendez Concrete contended that the United States Forest Service failed to properly deploy four water dropping helicopters at first light on the morning of October 26 in order to extinguish the slopover fire, especially because Lake Piru was just a mile away. Accordingly, Mendez Concrete contended that Piru fire grew from 1,253 acres because of the United States Forest Service negligence in delaying the deployment of the available water dropping helicopters on the morning of October 26, 2003.

Damages

According to defense counsel: Plaintiffs sought hard damages for fire suppression cost, burn area emergency response cost and resource damages in excess of $10 million. In addition, plaintiff sought damages for "intangible environmental costs" which plaintiff suggested be calculated by multiplying the hard damages by a factor of four. Mendez Concrete contended that the claim for fire suppression costs was excessive due to mismanagement and that the defendants should not be responsible for any such costs incurred after October 26, 2003, when defendants contend the fire should have been extinguished. Mendez Concrete further contended that the majority of the claim for burn area emergency response costs and natural resource damages were unreasonable and unnecessary and were incurred due to deferred maintenance, improper engineering or constituted improvements. Finally, Mendez Concrete contended that the claim for intangible environmental damages were without merit both as a matter of law and because intangible damage is temporary in nature given that wildfire is part of the natural environment in Southern California and often serves a beneficial purpose in terms of regenerating the natural environment for both plant and animal species which have evolved over the years to survive and flourish after a wildfire. Defendants' experts opined that, in the last 100 years, there have been 150 fires in the general area of the Piru Fire.

Result

The parties reached a settlement whereby Berry Engineering's insurer would compensate the U.S. Forest Service, which put out the fire, with $5 million, and Mendez Concrete's insurer would pay $447,423. Under the settlement agreement, the parties denied liability one to the other and agreed, upon completion of payment, to dismiss the entire action with prejudice.

Other Information

FILING DATE: Feb. 20, 2009.