Loading...
INFORMATION #1 07-15-2002TO: FROM: DATE: SUBJECT: MEMORANDUM Mayor and City Council Lori Johnson, Finance Director July 15, 2002 Open Mike Sewer Backup Issue INFo r nON On May 29, 2002, Ross and Kay Bengston, 374 Baldwin Avenue, reported a sewer backup. Their claim was submitted to the League of Minnesota Cities Insurance (LMCIT); however, after reviewing the claim, LMCIT denied the claim. Mr. and Mrs. Bengston do not agree with the denial and have had several conversations with City staff and Mayor Klinzing regarding this issue. I believe Mr. and Mrs. Bengston will be at Monday's meeting to speak under open mike to request that the city pay their damages since LMCIT did not. This memo contains background information so you can be prepared for that discussion, as well as various pieces of correspondence between the Bengstons, the League of Minnesota Cities Insurance Trust, and the City. All employees and supervisors have been instructed what to do in dealing with individuals who have claims against the City. We closely follow suggestions from LMCIT on dealing with injured parties and others with claims against the city. Attached is a copy of the information from the League of Minnesota Cities Insurance Trust that is provided to department heads and employees so they know how to handle possible claims against the City. City staffhas dealt with this claim the same that we deal with all claims submitted to the City. In summary the process is as follows: Incident occurs · City employee is at the scene or injured party calls City Hall to report an incident · City employee follows procedure indicating that claim may be submitted to the Finance Department for submission to the insurance company who will determine whether or not the City is liable · Finance Department files claim with insurance company upon receipt of information from claimant · League of Minnesota Cities Insurance Trust assigns an adjuster who makes contact with the Finance Department, other city employees who were involved or witnessed the incident, and the claimant · Insurance Company reviews facts and determines whether the City has any liability and informs the claimant by letter the findings along with payment or notification of denial of the claim · Case is closed The City always maintains open communication with the claimant and tries to help them work through the situation without at anytime admitting city liability or guaranteeing that payment will be made to them for their damages. As we stress with all claimants, the decision on whether or not the City was liable rests solely with the City's insurance company. Occasionally, when a claim is denied the claimant decides to either appeal or tries to push the issue in some other fashion. Typically after discussing the issue with them on the phone or by correspondence, the claimant understands why the City was not responsible, why the insurance company denied the claim, and why the City cannot pay for claims that are denied by the insurance company. The City Council has not in the past authorized payments to claimants because the LMCIT has denied their claim. However, once a claimant threatens a lawsuit or makes other threatening actions, communications with that claimant cease and the item is turned back to the insurance adjuster or the City Attorney. The Bengstons have threatened legal action against the city. Therefore after a phone conversation with Mr. Bengston on July 10 in which I informed him that I was sending a letter addressing the items raised in his recent letter, staff immediately discontinued communication and has had no further communication with Mr. or Mrs. Bengston. As I stated earlier, attached is some of the correspondence regarding this claim along with a memo from Gary Leirmoe explaining the facts of this claim. Both Gary and I will be present on Monday night to answer any questions the Council may have regarding this issue. MEMORANDUM TO: Mayor and City Council FROM: Gary Leirmoe, Chief Operator VV~VTP DATE: July I S, 2002 SUBJECT: Sewer Backup at 374 Baldwin I received a call at 8 a.m. on May 29, 2002, regarding a sewage backup at 374 Baldwin from Mr. Ross Bengston. Mr. Bengston informed me that this had been going on since 5 p.m. on May 28, 2002. He also informed me that he had called the Wastewater Treatment Plant and got the voice message twice and hung up before the message told him the number to call. I arrived at his home at 8:30 a.m. May 29 and found that there was a backup. Chris Clark and I opened the manhole behind 374 Baldwin and found the main to be plugged there. The manhole was accessed through the easement between Baldwin and Line Avenue. The obstruction was cleared and the main flow was normal by 9:30 a.m. Mr. Bengston told me that he had damage in his basement. I looked at the basement with Mr. Bengston and noted the damage. I informed Mr. Bengston that the City of Elk River does have insurance and that I would report the damage to the insurance company. On May 30, 2002, I returned to Mr. Bengston's residence and took pictures of the damage and filled out the sewer backup report. Mr. Bengston asked me again if the City of Elk River would pay for his damages and I informed him again that I had turned in the report to the insurance company and that was all I could do. Chris Clark was present on May 29, 2002, when we first spoke with Mr. Bengston and does agree with what I have stated. s:\council\wwtp\bengstonbackup.doc DEALING WITH THE INJURED PARTY - What to DO - "Just the facts" Write Down · What happened · What was said by you and to you · Extent of observed injuries or damages Physical evidence (photos and things) · Preserve all physical evidence and docUment storage Contracts · City employees report incidents to · If citizen feels that the city is responsible they should "I'LL SUE, I'LL SUE" Litigation Stops Direct Communication Accept service of summons and complaint Immediately forward a copy of summons and complaint to: Insurance Agent City Attorney LMCIT Claims Office When plaintiff calls ... Attorney defending city will contact plaintiff or plaintiff's attorney All contacts concerning lawsuits should be made through attorney July 5, 2002 Stephanie Klinzing Mayor of Elk River 13065 Orono Road Elk River, Mn 55330 Dear Mayor Klinzing: I am writing to you in regard to our claim for damge to our basement, due to the main sewer line back/ng up. I have written to Lori Johnson, Gary Leirmoe and Randy Loebrick. ! am hoping to get this resolved soon. Gary admitted when he came to our home that it was the fault of the city that the sewer backed up with tree roots plugging the system. I do not understand how your insurance carrier and the city can deny a claim like that. If Gary would own up to what he told us at our home, I do not think there would be a problem about you paying us what is due. I know you are well aware what is going on with this claim. I had hoped that you would have the guts to respond to our first letter, but we never heard fi.om you. I am voting citizen of this city and re-election will be coming up again. If we do not hear fi'om you, we will go to the news media with our plight. I do not know if you received the first letter or not maybe you do not read your mail or have a concern for the city's citizens now that you are Mayor. This may not be important to you, as the city's sludge did not back up in your basement. But to us, it is very much on our minds. I invite you to come to our home and see the mess that is still in the basement. We cannot afford to cover this expense. I know that the city has funds to cover such problems such as ours and believe they should step up and take care of this problem. I am hoping to get a response from you with a settlement, and not another broken promise from the city. Ross & Kay Bengtson 374 Baldwin Avenue lk River, Mn 55_~_~0 763 441 5324 July 5, 2002 Ms Lori Johnson Director o£Finance 13065 Orono Road Elk River, Mn 55330 Dear Ms Johnson: I am writing to you regarding our claim for damage to our basement. I had spoke to you on June 26, 2002. I asked you to send me a copy of the report that Gary Leirmoe submitted regarding our damages. You told me that you would send it out the next morning along with the name of the supervisor of Randy Loebrick. You did tell me that you were going on vacation, but you would get me this information in the mail the next day. It is well over a week since I was promised this information and have not received it. In the letter, dated May 10, 2002, fi.om Gary Leirmoe, he states a entrance is needed to maintain the sewer. He also states, "there is a chance of raw sewage entering your basement or property." I do not understand why you claim it is not the fauk of the city for this backup. The sewage came fi.om the main sewer line. You claim it was cleaned last August, this may be, but Gary stated tree roots were in the system and caused the backup. We did attempt to contact you during the middle of the night. There is nothing we could have done to stop this situation, but the city did not maintain it well enough to stop this process. We did have Roto- Rooter out the night of damage, he checked the line and found nothing in our line. So it was not from us not maintaining our line. I do not know why Gary is not owning up to what he told us. His words were that it was the city's fault and not to worry about the clean up it would be taken care. This may not be important to you, as the city's sludge did not back up in your basement. But to us, it is very much on our minds. I invite you to come to our home and see the mess that is still in the basement. We cannot afford to cover this expense. We need this mess taken care of soon. We have a grandson that is coming to live with us in August and he will be staying in the basement. That is, if it is fit to live in. I do not care where the money to cover this loss comes from, ekher the insurance or a fund from the city. I know that the city has funds to cover similar problems like ours. I am hoping to get a response from you with a settlement, not another broken promise fi:om the city. d.~jincerely, ~ ~ Kay Bengtson 374 Baldwin Avenue Elk River, Mn 55330 763 441 5324 12:04p July 5, 2.002 Randy Loebrick Allied Adjusters PO Bo× 583479 Minneapolis, Mn 55458 Date of Loss 5-29-02 File N'o MPS38502 Dear Mr Loebrick: I am writing again to appeal your decision on denial of ora' claim. The city sewer backed up in our basement due: to the fact that th~, sewer was not maintained well enough to stop this backup. Gary Leirmoe stated when he came out to inspect the sewer man holes, that there were tree roots in the lines. We had Rotor Rooter out to check the Ih~e from our house to the main line on the night of May 28,2002 He co ald not find any thing wrong with that liae. He went to the end of line Gary stated that the tree roots caused the back up and it would n,~ed to be cleaned up. The city did get their equipment in the back all ~y to clean the situation. Gary did come to inspect our basemen'l: for damages. He told us it was the city's fauk and not to worry the damages would be tak, m care of by the city. I am not understanding My Gary is not owning up to what he told us. Or why you do not consider the city at fault lbr not covering these expenses. The situation is very plain---Tree roots plugged up the sewer systertg it backed up in our basement, Gary to]ri us it was the fault of the city, the city needs to pay us for our damages. I want you to reconsider this claim, we have a valid claim agains't the city and do not understand why you can not cover om' expemes. We have taken pictures, which you haYe copies of, that si: ow our damage fi'om the main sewer line backing up. We are asking you to reconsider and cover the cost of clean up by Service Master, and the cost ol."repairing our basement back to what w.: use to enjoy befo re all this damage was done. We need the wallboard and carpeting replaced, along with the cost of things that were thrown because p.1 Jul lO 02 12:04p p.2 Contamination to them. We have submitted 8. list of things thro~vn out. We are asking you to reconsider or submit this to your super- visor or someone else that can see we are inocent victims here aa td no one is considering what we are going through to get this claka taken care. I am hoping for a reconsideration ~om the insurance con ~pany. /~incerely, ~_ _ . ~ ............ Ross ;md Kay Bengtson 374 Baldwin Avenue Elk River, Mn 55330 763 4,11 5324 June 18, 2002 Randy Loebrick Allied Adjusters PO Box 583479 Minneapolis Mn 55458 Date of Loss: 5-29-02 File No. MPS38502 Dear Mr Loebrick: This is in regard to your letter of denial on our property loss due to a sewer back up in the main city line. We are appealing your decision. In the evening of May 28, 2002, we found sludge in our basement, assuming that it was our sewer, we called Rooter Roter to come and take care of the situation. When the repairman arrived, he checked our line for 150 feet or out to the main line and could not find any problem. He said it had to be the main line. I tried to call the number listed for city sewer. I stayed up all night trying to clean the mess, but it just kept coming. Our sump pump could not keep up with the sludge. I did get a hold of Gary Leirmoe, the next morning. Gary came out to inspect the sewer. He looked at the manhole next door to us and said that there was a problem. He said they would have to check in the alley. And thats where they found the system plugged. They got the system unplugged. He then came over to look at our basement and talk to us. He said it was the city's fault and they would take care of the damages. Gary called us later in the morning and told us to call Service Master to come and clean the basement and the city would take care of the charge. He also told us to be sure to throw away anything that was contaminated by bacteria. He said we could geat sick fi.om it. My wife asked Gary why we were the only one on the block that had the backup, he said because we were the lowest point on the block and we would always get the backup fi-om the blocked area. We are poor working people and cannot afford to cover this loss due to someone else's mistake. We would not have called Service Master, simply because we knew we could not afford to have them clean our basement. We took Gary at his word and had them come out to clean and discard many of our valued items from the basement. We have submitted a list of items that were thrown because they into contact with the sludge backup. We have not gotten the bill for the cleanup or the bill from the furnace check. A large amount of sludge went up into our furnace, we had it checked to make sure it was not damaged. The carpeting and 2 feet of our wall board was cut out as it was shown to have bacteria crawling up the wall. This is all expenses that we feel needs to be covered by the city of Elk River. We received a letter from Gary Leirmoe dated May 10, 2002. In the letter they are stating that a entrance is needed to service the sewer lines, and a easement was needed, because they cannot maintain this section the the sewer. In his letter he states"there is a chance of raw sewage entering your basement or property". We were the unlucky one where "raw sewage" did enter our basement. We do not have a manhole on our property or have any of the fences, he was describing, but we got the worst end of the deal. We are asking your to reconsider your decision regarding our claim. We feel you are responsible for the cleaning of basement and the reapir of our basement, which includes replacing our carpeting and wall board. We have already submitted a list of things thrown out and pictures to back up our loss. We are anxious to hear from you. Sincerely, _ ~ Ross & Kay Bengtson 374 Baldwin Avenue Elk River, Mn 55330 763 441 5324 CC.' Loft Johnson City of Elk River CC Stephanie Klinzing Mayor of Elk River River 13065 Orono Parkway Elk River, MN 55330 Gary Leirmoe Chef Operater City of Elk River W.W.T.P. 763-441-4918 Mayl0,2002 Ross & Kay Bengtson; It has come to my attention,that there is a fence on your property, which Encroaches UPon the Utihty Easement. There is a Sanitary Sewer Main Line in the easement. The City of Elk River Wastewater Department Needs access to that 1/ne for cleaning and if the line were to plug. If We could not access the line in a timely manner, should it plug, there Is a chance of raw sewage entering your basement or property. I have Enclosed a copy of the City of Elk River ordinance, that addresses Easements.Please contact me a 763-441-4918(8:00 a.m.-4;30 p.m.) So we ma,v discuss a solution. Thank you, G~a~ Leirmoe Phone: 763.441.7420 Fax: 763.441.7425 www. ci.elk-river, mn.us JUN 19 ZOO~ ALLI[ June 14, 2002 P.O. ~ox 583479 Minneapolis, MN 55458 (612) 766-3700 FAX: (612) 766-3799 Ross Bergston 374 Baldwin Elk River, MN 55330 RE: Date of Loss : 05/29/02 Our File No. : MPS38502 Dear Mr. Bergston: I have completed my investigation with the City of Elk River in reference to a sewer backup that occurred at your residence on May 29, 2002. According to the City, you tried contacting them after 5:00 p.m. on May 28, 2002. However, when you received their recorder', rather than listening to the entire message, you hung up and Called them back the following morning. Had you listened to the entire message, a phone number was given for an emergency contact for after hours to dispatch City workers to help in case of sewer backup problems. It should also be pointed out that the City does a regular routine scheduled maintenance in order to try to keep the City sewer lines free from obstruction. According to their records, the line in question was just recently cleaned in August 2001. Given the fact that you have had no previous sewer backups to Your property and that the City has done'a good job in keeping up with their maintenance program of keeping their lines cleaned, I cannot find them negligent or liable for causing your damages. Therefore, we must respectfully deny your claim. RO. Box 153 · Harward, ~1 3~843 ' 715.634.7808~ . ~ EO. Box 583479 · Minneapolis, MN 55458 · 612-766-3700 * Fax 612'766-3799 A Division of Berkley Risk Administrators Company LLC Ross Bergston Our File No.: MPS38502 June 14, 2002 If you have any questions regarding this claim, please contact me at (612) 849-3002. Sincerely, ALLIED ADJUSTERS Rand~b_ick cc: Lori Johnson City of Elk River cc: LMCIT Claims 2 145 University Avenue West, St. Pa~l, MN 55103-2044 Phone: (651) 281-1200 · (800) 925-1122 TDD (651) 281-1290 LMC Fax: (651) 281-1299 ° LMCIT Fax: (651) 281-1298 Web Site: http://www.lmnc.org ELK RIVER, CITY OF 13065 ORONO PARKWAY ELK RIVER ACKNOWLEDGMENT OF CLAIM MN 55330 Date: 6/05/02 RE: Our File No.: LMCIT Member: Claimant Name: Occurrence/Loss Date: Claim Description: 11040094 ELK RIVER, CITY OF ROSS BERGSTON 5/29/02 SEWER BACKUP Supervisor: Phone No.: Fax No.: CURTIS HEITSCHMIDT (651)281-1284 (651)281-1297 Adjuster: Phone No.: Fax No.: RANDY LOEBRICK (612)766-3700 (612)766-3799 We have received this claim at the LMCIT claims office. The assigned claims supervisor and adjuster are listed above. The adjuster is your key contact on this claim. If you have not already been contacted by an adjuster, please call the listed phone number and ask for the specific adjuster assigned to this claim. The claims supervisor is also available to you at any time. LMCIT Claims Department C.C. FIRST NATIONAL INSURANCE AGCY 716 MAIN STREET STE 107 ELK RIVER MN 55330 AN EQUAL OPPORTUNITY/AFFIRMATIVE ACTION EMPLOYER SEWER BACK-UP REPORT DATE EQUTpI~ENT USED:"