A Bloomington attorney and resident of Ward 1 is ready to start the legal process of taking the city to court.
“It was the wrong call for the city to just flat out, deny all of these claims and call them an act of God,” said William Mahrt, lawyer and Bloomington resident. “I know in my house, raw sewage coming up through the city drains is not something that God did. There was rain falling out of the sky. I’ll acknowledge that, but ewer backups… those are things that the city may have known about. I know for a fact they did know about in some neighborhoods for quite a while.”
Mahrt said it’s a health hazard that should have been addressed. Mahrt is encouraging the community to reach out to him if they experience flooding or claim denials.
“I don’t think it ever was addressed in an inappropriate way, but that’s something that we’re looking into,” said Mahrt.
The city of Bloomington told Cities that the PMA Companies insurer has denied about 550 claims so far.
Bloomington did not release numbers on claims that were accepted. Mahrt said he considered a class action suit.
“I don’t think that that is going to be available for us because with the class action suit, we have to have essentially one plaintiff who represents the entire. In this case we might have a class that’s made up of 10 or 12 people in a neighborhood, but for the most part, each neighborhood is going to have a slightly different set of facts that they need to prove in order to get compensation,” said Mahrt.
Mahrt said there could be some other creative things in the discovery process and in depositions to make it take less time, and to not have to rehash the whole case for every single house.
“I know for a fact that one of the residents in the Oakland watershed area provided me with a 2013 engineering report that, specifically calls out that area. It’s close the State Street and Oakland intersection. It goes a little bit south from there and then east and west. In this 2013 engineering report the engineers proposed separating the sewer lines in that area because of the high frequency of sewage surcharges,” said Mahrt.
Mahrt said it is clear the city has not separated or operated off that engineering report of 2013… because in this last rain there were excessive surcharges, again, in the same neighborhood.
A lot of the claims Mahrt has been hearing fit into a dollar-amount range between $10,000 and $50,000.
“So we’re out of the quick and easy small claims court where you just go in and you tell the judge what you think… like Judge Judy,” said Mahrt. “We’re not quite to the point of the $50,000 line…which is where we get into the traditional law court. We’re kind of in a middle ground, which is called arbitration court. We have all of the ordinary discovery procedures.”
Mahrt said before the trial occurs, they can take depositions, send subpoenas, request documents. They can even do what’s called a ‘request to admit,’ and get the city to admit to some issues or deny them in a particular way.
“But when we go to trial in an arbitration case between $10,000 and $50,000, we go to trial in front of a panel of lawyers,” said Mahrt.
The panel is called an arbitration panel.
“Each party will hand a binder to the arbitration panel that has all the evidence in it. Then we’ll go through maybe two hours of testimony, and then the arbitration panel will give us a decision. Because it’s not a real court, you can choose to reject that decision, but they charge you a pretty significant amount of money to reject,” said Mahrt.
But what really are the odds of this case ruling favorably for the residents?
“The more recent cases that deal with tort immunity or city-favorable, but if you go back to the 80s and before, you can find a lot of courts that were applying common law principles and holding cities accountable,” said Mahrt. “I did find a case from that period that talks about the city’s defense, this act of God defense. It clarifies that this defense is really only available…if the damage wouldn’t, if the damage would have happened, even if the city hadn’t been negligent.”
Mahrt said he has All State Insurance and the company told him that they don’t even sell sewage backup insurance.
