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Appeal of Claim by Chelsea SmithTo: Mayor Roy D. Buol and Members of the City Council Date: October 25, 2011 Request to Appeal a decision by ICAP denying a claim by Chelsea Smith. Claim # ICP035688A1 I am writing on behalf of my niece, Chelsea Smith. On 10/07/11, a large limb fell from a city -owned tree at 1573 Main Street and damaged Chelsea's car. The police were notified, pictures were taken, and a police report was filed. Chelsea only has liability car insurance. My niece is a working mom trying hard to provide for herself and her daughter. Chelsea contacted the City Clerk's Office and followed through on all paperwork. Due to the back window being shattered, glass covered the entire back seat including her daughter's car seat that had to be removed and destroyed. She also would not be able to put in a new car seat until the window was replaced so we both appreciated how quickly the City Clerk forwarded the claim to the Public Entity Risk Services of Iowa. Unfortunately, after this point we were very disappointed. Assuming a claims adjuster would want to look at the car, we taped plastic over the car window and did not clean up the inside glass. The following week, we realized that no one had any intention of looking at the car or the tree. We feel that ICAP was going to deny the claim no matter what the situation. Less than three days after Aaron Scharmota, Claims Adjuster for ICAP, received the paperwork, a letter was sent to Chelsea denying the claim with no explanation as to why ICAP felt their "member' was not negligent. When Chelsea called, she was told by Mr. Scharmota that the tree was healthy (he could tell by the picture) and therefore the City of Dubuque was not responsible. She was denied a copy of the investigation. I then contacted Cindy Steinhouser, Assistant City Manager, and explained my concem both with how the claim was denied and with the lack of concem over how dangerous I thought this tree and three other trees on this street looked. I mentioned that residents in the neighborhood have no choice but to park on the street and how devastating it would have been if my grand niece had been in her car seat at the time the limb fell. After Ms. Steinhouser did some checking, Steve Pregler from the City called Chelsea and said on inspection the tree was damaged and would need to come down. When this was relayed to Mr. Scharmota, he then admitted the tree was unhealthy but stated the City of Dubuque still was not responsible because of unawareness and therefore not negligent. I find this argument ridiculous. The City is not always proactive in taking care of trees and instead waits for complaints. Dubuque has had several bad storms and there are trees with broken branches in them being held in place by other branches waiting for a windy day to bring them down. There are also many city-owned trees that are not pruned properly and have branches that reach way too far out and could easily crack on a windy day. I have read the City sometimes has trouble with landlords who are unaware of their crumbling buildings due to not being proactive. Are the landlords not negligent when a porch comes falling down and someone gets hurt? For all of the above reasons, I wish to appeal the decision of ICAP. I do not feel that due diligence was carried out in handling this claim. Thank you for your time and consideration on this matter. Respectfully, JoEllen Reed for Chelsea Smith Ot tNia 563 - 582 -7870 3175 Pennsylvania Ave. Apt 216 Dubuque, Iowa 52001 Enclosures C7 CD CT C C 1\) C; irz CI) Fri FP v (D N rn Iowa Communities Assurance Pool October 13, 2011 Chelsea Smith 1573 Main Street, Apt: 4 Dubuque, IA 52001 RE: Our Claim No.: -TCP035688A1 Our Member: City of Dubuque Claimant: Chelsea Smith Date of Loss: 10/7/11 Dear Ms. Smith, As you know we are handling the above captioned matter on behalf of the City of Dubuque. We have completed our investigation of the claim that was submitted on 10/11/11. We believe we now have the facts concerning your claim and are able to advise you of our decision. As we are sure you can understand, we are not under obligation to pay all claims that are submitted, regardless of the cause or manner of the incident. Our obligation is to reimburse only when we find our member negligent. After careful review of the situation, we do not believe our member is at fault and therefore, we must deny the claim. We are sorry that you have incurred a loss. However, we can only pay for claims where our member is liable. r--- Aaron Scharmota Claims Adjuster Iowa Communities Assurance Pool 5701 Greendale Road • Johnston, IA 50131 www.icapiowa.com • (1) 800- 383 -0116 • (F) 800- 689 -1918 Loss Control: 800- 239 -7557 • Claims: 888 -520 -4074 Masterpiece on the Mississippi TRACEY STECKLEIN PARALEGAL MEMORANDUM To: Mayor Roy D. Buol and Members of the City Council DATE: October 11, 2011 RE: Claim Against the City of Dubuque by Chelsea Smith Claimant Date of Claim Date of Loss Nature of Claim Chelsea Smith 10/10/11 10/07/11 Vehicle Damage This is a claim in which claimant alleges that her parked vehicle was damaged after a limb fell from a City -owned tree at 1573 Main Street. This claim has been referred to Public Entity Risk Services of Iowa, the agent for the Iowa Communities Assurance Pool. cc: Michael C. Van Milligen, City Manager Marie Ware, Leisure Services Manager Chelsea Smith OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SurrE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001 -6944 TELEPHONE (563) 583 -4113 / FAX (563) 583 -1040 / EMAIL tsteckle@cityofdubuque.org Tracey L. Stecklein Paralegal Suite 330, Harbor View Place 300 Main Street Dubuque, Iowa 52001 -6944 (563) 583 -4113 office (563) 583-1040 fax tsteckle@cityofdubuque.org Chelsea Smith 1573 Main Street, Apt. 4 Dubuque, IA 52001 RE: Claim Against the City of Dubuque Dear Ms. Smith: Dubuque btetea 'I,! 2007 Masterpiece on the Mississippi October 11, 2011 The claim that you filed against the City of Dubuque on October 10, 2011, alleging that your parked vehicle was damaged after a limb fell from a City -owned tree at 1573 Main Street, has been referred to Public Entity Risk Services of Iowa, the agent for the Iowa Communities Assurance Pool. If you should have any questions regarding this matter, you may call them at (888) 520- 4074 (toll- free), or you may write to them at: Claims Public Entity Risk Services of Iowa 5701 Greendale Road Johnston, Iowa 50131 Very sincerely, Tracey Stecklein Paralegal Enclosure cc: Marie Ware, Leisure Services Manager Frank Miller, Jr., Claims Manager, Public Entity Risk Services Frank R. O'Connor, O'Connor & Associates Tracey L. Stecklein Paralegal Suite 330, Harbor View Place 300 Main Street Dubuque, Iowa 52001 -6944 (563) 583 -4113 office (563) 583 -1040 fax tsteckle@cityofdubuque.org Frank Miller, Jr., Claims Manager Public Entity Risk Services 5701 Greendale Road Johnston, Iowa 50131 Dubuque THE CITY OF Allamedcaft DUB 1111 r Masterpiece on the Mississippi 2007 October 11, 2011 RE: Claim Against the City of Dubuque by Chelsea Smith Dear Frank: Enclosed is a claim filed on October 10, 2011 against the City of Dubuque by Chelsea Smith. Claimant alleges that her parked vehicle was damaged after a limb fell from a City -owned tree at 1573 Main Street. If you have any questions regarding this claim, please call Marie Ware, Leisure Services Manager, at (563) 589 -4263. Very sincerely, dR&u—ck Tracey ecklein Paralegal Enclosure cc: Marie Ware, Leisure Services Manager Chelsea Smith Frank R. O'Connor, O'Connor & Associates 411111111111111