Lawyer seeks to punish Idaho grass growers

Capital Press Staff Writer


COEUR D’ALENE, Idaho – The other shoe has dropped in a lawsuit designed to stop grass burning in Northern Idaho. The attorney handling the case is asking for punitive damages.

Although it was always expected, Steve Berman, a Seattle attorney and expert in class-action lawsuits, asked the court on Nov. 27 to include punitive damages as part of plaintiffs’ claim against grass farmers. Unlike other awards, the purpose of punitive damages is not to compensate, but to punish.

In the words of the brief filed in Idaho District Court, the damages seek “to express the outrage of society at certain actions.” Berman acknowledged punitive damages are frowned upon in the state, but drew attention to an Idaho Supreme Court ruling that said they are warranted “where there is a bad act and a bad state of mind.”

He believes both are operating in the case of grass farmers burning their fields to stimulate seed production, and he suggests punitive damages may be the “only means to deter the defendants from torching their fields.”

The brief refers to what is one of the growers’ primary defenses in a dismissive fashion.

“The defendants’ sole alleged justification for their outrageous conduct is that the state of Idaho has said it’s OK,” he wrote.

Gary Baise, the Washington, D.C., attorney representing grass growers, said he wondered whether Berman believes “in our form of government.” He pointed out the Idaho Legislature passed the law allowing burning on behalf of its citizens.

As a result, he said he believes it would be hard to get punitive damages. He is not surprised by Berman’s action, however, concluding his recent filing might have been expected, given comments comparing the grass suit to tobacco litigation.

The latest suit against grass growers in Northern Idaho was filed June 10, 2002. Although it has not yet been certified as a class action, a certification hearing is scheduled for Jan. 13.

If approved, the proposed class-action suit would include residents with medical conditions aggravated by smoke in Kootenai, Bonner, Benewah and Spokane counties, as well as other areas.

Linda Clovis, spokesman for the North Idaho Growers Association, said the recent filing is about greed. “You knew they were after the money,” she said.

Class-action attorneys ordinarily take on cases at their own expense. They are generally paid only if the verdict is returned in their favor, often receiving anywhere between 30 and 40 percent of what’s awarded to plaintiffs.

Until recently, it appeared the growers’ insurance companies would constitute the front line for any damages. They have already paid thousands of dollars in attorney fees to fight the case.

Lately, however, several companies have indicated they will either not continue to insure growers or are seeking a judgment in court to avoid continued coverage.

If insurance companies are successful at limiting their liability, it means Berman and his plaintiffs will come after farmers’ assets directly.

Asked about this scenario, Berman replied: “Whether the growers’ insurers are trying to distance themselves from the damages is an issue that is between the growers and those insurers.”


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