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Bublitz, Lois & Stonskas, D., Water Main Break Claim Appeal Lois Bublitz 2480 Mineral Street And Dianna Stonskas 2485 West Street Dubuque, Iowa 52001 March 29, 2005 Jean Schneider City Clerk of Dubuque City Hall 50 W 13th Street Dubuque, Iowa 52001 Dear Ms. Schneider: This is a request to be added to the agenda for the City Council meeting to be held on April 4th. It is in regards to a water main break that occurred on Sunday, January 23, 2005 at approximately 9:50 a.m. at 2367 West Street. Claims were filed by the above property owners and denied by the City. Sincerely, '1~ ti~ Lois Bublitz ,'\... Dianna Stonskas i'.'; Th;~~E ~~~ MEMORANDUM March 31 , 2005 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Lois Bublitz Claim Attached is a memo from Water Department Manager Bob Green summarizing the series of events related to a damage claim by Lois Bublitz 2480 Mineral Street which resulted from a water main break. At 10:15 a.m. on January 23,2005 the water distribution crew responded to a water main break at 2367 West Street. City staff arrived at the location of the break within one-half hour of receiving notice of the break and were able to turn off the water by 11 :45 a.m. The repairs were completed and water restored at 5:30 p.m. that same day. According to Water Department Manager Bob Green, the last problem experienced with the water main in this location was a blowout in 1985 but nothing about that break would have lead city staff to believe that another blow-out would occur some twenty years later in 2005. West Street where the water main break occurred is at a higher elevation than the claimant's property on Mineral Street. As a result, the water from the break drained from West Street to Mineral Street through the yards of several homes located on both streets. As indicated on Ms. Bublitz's claim form, the water traveled through her foundation and window wells. Her basement wall was cracked and there was damage in the yard, sidewalk and steps. Attached are photos indicating the damage observed. When Ms. Bublitz claim was received it was referred to Public Entity Risk Services (PERS) for review. PERS denied the claim based upon the following: · The City of Dubuque had no prior notice of any problems with the water main in this location; · City personnel were at the scene promptly and did everything they could to rectify the problem; · Once notified, the City was on the scene within 30 minutes and the water was turned off by 11 :45 a.m. that morning; and · The water main was returned to service by 5:30 p.m. the same day. PERS also noted that at the time of the1985 water main break Ms. Bublitz incurred damages to her home as a result of this break but these damages were never repaired. This makes it difficult for PERS to determine the actual damages that occurred from the 2005 water main break. Under Iowa law, a city is not an insurer of all damage that may occur from an incident such as this water main break. A city is only liable if it fails to exercise reasonable care to keep water mains in repair. Also, in order for a city to be liable for damage such as Ms. Bublitz, it must be shown that the city knew or should have known of the defective condition of the water main that caused the damage in time to have remedied the defect before the damage occurred. City staff including Water Department Manager Bob Green, Water Distribution Supervisor Mike Brekke, and I have visited with Ms. Bublitz on several occasions to discuss the claim. Based upon the above information, I concur with the denial of the claim as provided for by PERS. Ms. Bublitz has been notified of her options to request City Council review of her claim or to take legal action against the City. { i' Lit; I} / '7 l Y \ L~ '/il) / }\( Michatel c. Van Milligen -----. MCVM/cs Attachment Cc: Barry Lindahl, Corporation Counsel Jeanne Schneider, City Clerk Cindy Steinhauser, Assistant City Manager Bob Green Water Department Manager CITY OF DUBUQUE, IOWA MEMORANDUM March 30, 2005 TO: Michael C. Van Milligen, City Manager Bob Green, Water Department Manager~ SUBJECT: Lois Bublitz Claim - January 23, 2005 FROM: This memorandum is being provided as a follow-up to this incident. The following sequence of events have taken place in evaluating this claim, resulting in it being denied. On January 23,2005 at approximately 10:15 a.m. the water distribution crew responded to a water main break at 2367 West Street. Staff arrived at the site and had the water shut down at approximately 11 :45 a.m. The repairs were made and water was restored by 5:30 p.m. In performing the repairs, it was observed that water from this break had drained from West Street to Mineral Street through the back yards of homes located on both streets. Ms. Bublitz's home, located at 2480 Mineral Street, was in the path of this draining water. Water came through her back yard, around the home's foundation, into basement window wells, across the patio, sidewalk and continued down through the front yard onto Mineral Street. Staff visited the Bublitz home and found several family members cleaning and vacuuming water from the basement floor areas. Staff took pictures of the exterior areas around the home located in path of the draining water. The following day, staff members revisited the Bublitz home to aide and assist with clean up. Clean up to the Bublitz's basement had been completed by her and family members. During this visit, Ms. Bublitz informed staff that her basement wall was cracked. Photographs of the internal basement damaged areas of the home were taken. Since this incident, Ms. Bublitz has filed a claim with the City for damages to her home in the proposed estimated amount of $18,119.20. Her claim was filed on February 9,2005 and was referred to Public Entity Risk Services of Iowa for review. Brenda Snyder from Public Entity Risk Services interviewed City staff and Mrs. Bublitz on this claim. Ms. Snyder was provided the photographs that staff took of this home the day of and the day after the water break. It was determined that the cause of the water main break was the result of a blow-out which is a weak spot in the water main. The most recent prior problem with this water main was a break in 1985. Nothing about the water main break in 1985 would have led the City to believe that this break would occur some twenty years later. Based on the information provided, Ms. Snyder from Public Entity Risk Services concluded that they City was not negligent in the maintenance of the water main because it did not have prior knowledge of the defect that caused the damage in time to have remedied it prior to the water main break. Ms. Bublitz was notified that her claim was denied. She has since responded by telephone calls to the City Manager and a letter to Mayor Duggan explaining her disappointment of this claim being denied. Ms. Bublitz, in her letter to Mayor Duggan dated February 25, 2005, asked who Public Entity Risk Services of Iowa were and said that she had not seen anyone from that service or the city to survey the damages. As follow-up to this letter, staff and I visited with her and family members at her home on Friday, March 4, 2005 at approximately 2:20 p.m. During our visit I explained to them who Public Entity Risk Services were and presented her, for review, approximately 31 photos that water department staff took of the damages to her home the day of and the day after the water main break. I explained to her that we provided these same photos to Brenda Snyder from Public Entity Risk Services for their review in evaluating her claim. In our evaluation and in researching the facts of this claim, and as per Iowa law, it was determined that the City is not liable for these damages and therefore Ms. Bublitz's claim was denied. A letter was sent to Ms. Bublitz on March 22, 2005 explaining our position on the denial of her claim and what her appeal options were. I'm available at your convenience to discuss this claim further should you have any questions. BG:vle Attachments cc: Cindy Steinhauser, Assistant City Manager Barry Lindahl, Corporation Counsel File I ' Vf!( Eagle Point Water Plant 1902 Hawthorne Street Dubuque, Iowa 52001-1416 (563) 589-4291 office (563) 589-4297 fax wtrplnt@cityofdubuque.org THE CITY OF ~, D~ ~~~ March 22, 2005 Ms. Lois Bublitz 2480 Mineral Street Dubuque, IA 52001 RE: January 23, 2005 Damage Claim Dear Ms. Bubliltz: This letter is being provided as a follow-up to your questions to Mayor Terry Duggan, City Manager Michael Van Milligen and me. In your letter dated February 25, 2005 to Mayor Duggan you asked the following questions: 1. The Public Entity Risk Services of Iowa (whoever they are) now informs me that my claim is denied. 2. I have not seen anyone from that service or anyone from the City of Dubuque (Mayor, City Manager, City Insurance Adjuster, or City Engineer) at my house to survey the damage. Public Entity Risk Services of Iowa is the claims adjusting agency in Des Moines, Iowa that handles damage claims such as yours filed with the City of Dubuque. I visited with you and your family members at your home on Friday, March 4, 2005 at approximately 2:20 p.m. During our visit I presented to you, for your review, approximately 31 photos that my staff took of the damage to your home the day of the water main break. I explained to you and your family members that my staff took these photos the day of the break and then provided the photos to the claims adjusting agency for their review. Brenda Snyder from Public Entity Risk Services interviewed you and my staff by telephone in order to evaluate the claim. Ms. Snyder also had the photographs of your home taken the day of the water break. Service People Integrity Responsibility Innovation Teamwork Under Iowa law, a city is not an insurer of all damage that may occur from an incident such as this water main break. A city is only liable if it fails to exercise reasonable care to keep water mains in repair. Also, in order for a city to be liable for damage such as yours, it must be shown that the city knew or should have known of the defective condition of the water main that caused the damage in time to have remedied the defect before the damage occurred. The cause of the water main break was what is called a "blow-out" which results from a weak area in the water main. The most recent prior problem with this water main was a break in 1985. Nothing about that break in 1985 would have led the City to believe that this break would occur some twenty years later. One break twenty years earlier is not a reasonable basis for the City to believe that the water main is in poor or unacceptable working condition or that the section of water main on West Street is in need of replacement. Based on this information, Ms. Snyder from Public Entity Risk Services concluded that the City was not negligent in the maintenance of the water main because it did not have prior knowledge of the defect that caused the damage in time to have remedied it prior to the water main break. As I have previously informed you, if you are in disagreement with the City's denial of your claim, you may request that the City Council review your claim and or you may take legal action against the City. I hope this letter has answered your questions and concerns. Ro ert M. Gre~~ Water Department Manager RMG:vle Attachment cc: Michael C. Van Milligen, City Manager Barry Lindahl, Corporation Counsel, City of Dubuque File . .. Bob Green From: To: Sent: Subject: "Tracey Stecklein" <tsteckle@cityofdubuque.org> "GREEN, BOB" <BGREEN@cityofdubuque.org> Friday, March 04, 2005 11 :31 AM FW: Bublitz Claim - No. H010584 From: Brenda Snyder [mailto:Brenda@bilbreyinsurance.com] Sent: Friday, March 04, 2005 10:50 AM To: Tracey Stecklein Subject: RE: Bublitz Claim - No. H010584 Hi Tracey: In regards to this claim, I received the following information: Clmt alleges that a city water main break occurred and caused damage to her home This loss occurred on 1-23-05 at about 9:50 a.m. -City workers were notified about 10:15 a.m. ofthis, city was at the scene and had the water turned off at 11 :45 a.m. Clmt alleges that she has $16,994.20 in damages, however, she had prior damages that she never repaired from a water main break in 1985 - so at this point the actual amount of damages from this water main break isn't clear Discussed claim with Bob Green - he said he would like me to discuss this with Mike Brackey, as Mike has more information Rec'd call from Mike he states: City rec'd call at 10:15 a.m. - went to the clmt property and had water turned off by 11 :45 a.m. and water restored at 5:30 The water main break happened on West Street - with this being at a higher elevation as to where the clmt lives - -water went down into c1mt property Water Main installed in 1927 Date of previous breaks in area - 1944 - 1949 - 1955-1972-1985 Reasons for Denial: City not on notice of any problems Once City was notified of the problem they were at the scene within 30 minutes, had water turned off by 11 :45 a.m. and the water was turned back on by 5:30 pm City was at the scene promptly and did everything they could to rectify the problem If you need anything additional please feel free to contact me. Brenda From: Tracey Stecklein [mailto:tsteckle@cityofdubuque.org] Sent: Friday, March 04, 2005 8:38 AM To: Brenda Snyder 3/4/2005 Page 1 ot 1 Subject: Bublitz Claim - No. H010584 Brenda: The above-mentioned claimant, whose claim was denied by a letter dated 2/22/05, has been contacting the City Manager and the Mayor regarding the denial of her claim. The City Manager has asked Barry to put together a summary of the claim, stating the reason for denial, so that the City Manager can respond to claimant. I would appreciate it if you could please respond to this email with the requested information. I will then pass on to Barry so he can do a summary for the Manager. Thank you for your assistance with this matter. Have a good day and weekend! Tracey 3/4/2005 9 44-127 DUBUQUE CODE Sec. 44.127. City's responsibility in turning on service. In turning on water, the city or city water de- partment shall not be responsible for any damage that may occur by reason of open, defective or disconnected IlXtures or piping. (Code 1976, ~ 36-98) Sec. 44.128. City only to turn on service. When the water supply to any premises has been shut off at either the curb shutoff or the meter, it shall not again be turned on accept by an autho- rized representative of the city water department. The water department may refuse to turn on the city water to any premises where a bill is in dis. pute or unpaid or where, if applicant is a tenant, the required deposit has not been made. (Code 1976, ~ 36-99) Sec. 44-129. Closing of accounts. Owners or consumers desiring to discontinue the use of water shall give notice to the city water division. The meter will be read and a fmal bill computed. If the customer is transferring within the system, the final balance will be transferred to the customer's new account, and will be subject to the normal collection procedures for active ac- counts. If the customer is discontinuing service on the city water system, the Imal bill will be ren. dered to the customer and will be subject to the normal collection procedure for final bills. (Code 1976, 9 36-100) Sec. 44-130. Use of lIre hydrants restricted. No person, except members of the lrre depart- ment, street and sewer departments, or employees Supp. No. 16 2834.4 be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) for each offense. Each day on which a violation shall occur or continue shall be deemed a separate and distinct offense. In addition to the penalties provided herein, the city may recover reasonable attorney's fees, court costs, court recorders' fees, and other expenses of litigation by appropriate suit at law against the person found to have vio- lated this division or the orders, rules, regula- tions and permits issued hereunder. (b) Falsifying information. It shall be unlawful for any person to knowingly make any false state- ments, representation or certification in any ap- plication, record, report, plan or other document mes or required pursuant to this division, or waste- water discharge permit, or to falsify, tamper with or knowingly render inaccurate any monitoring device or method required pursuant to this divi- sion. (c) Judicial review. Any person aggrieved by any decision, action or order under this division may appeal to the district court in and for Dubuque County. Any such appeal shall be commenced within (30) days subsequent to such decision, ac- tion, or order being rendered. (Ord. No. 38-93, ~ 2, 7-6-93) " Sees. 44.107-44.120. Reserved. I ARTICLE ill. WATER DIVISION 1. GENERALLY Sec. 44.121. Definitions. In this article, the words "water works," "city water works" or "city water department" shall mean the city, acting through its qualified of- ficers. (Code 1976, 9 36.92) Cross reference-Rules of construction and definitions gen- erally. ~ 1.2. Sec. 44-122. Provisions of article part of con- tract. The provisions of this article shall be consid- ered a part of the contract with every person who Supp. No. 16 UTILITIES ~ 44.126 takes water, supplied by the city, through the city water department, and every such person who takes water shall be considered as having ex- pressed such person's agreement to be bound thereby. (Code 1976, ~ 36-93) Sec. 44.123. City not responsible for breaks in lines. The city shall not be held responsible for any damages caused by the breaking of any service pipe, water main or fire hydrant. (Code 1976, ~ 36-94) Sec. 44-124. Ab~doned service pipes. All service pipes abandoned must be perma- nently closed off at the water main at the expense of the owner of the premises, and so reported to the water department for inspection and written approval given before being backfllled. (Code 1976, ~ 36-95) Sec. 44-125. City's right to shut off service. The city reserves the right at any time, when necessary, without notice, to shut the water off for the purpose of making repairs or extensions or for other purposes, and no claims shall be made against the city by reason of the breakage of any service pipe or service cock, or from any other damage that may result from shutting off the water for repairing, laying or relaying mains, hy- drants or other connections. (Code 1976, ~ 36-96) Sec. 44.126. Consumers' duty re water heaters during service shutoffs. When water is shut off for making repairs, con- sumers having water heating coils, shall turn ofT the water at the basement shutoff and open a faucet in the hot water pipe and leave it open until the water is turned on, in order to protect piping and fixtures from excessive pressures from hot water or steam. (Code 1976, 9 36-97) 2834.3 .~ 44-127 DUBUQUE CODE Sec. 44.127. City's responsibility in turning on service. In turning on water, the city or city water de- partment shall not be responsible for any damage that may occur by reason of open, defective or disconnected flXtures or piping. (Code 1976, ~ 36.98) Sec. 44.128. City only to turn on service. When the water supply to any premises has been shut off at either the curb shutoff or the meter, it shall not again be turned on accept by an autho- rized representative of the city water department. The water department may refuse to turn on the city water to any premises where a bill is in dis- pute or unpaid or where, if applicant is a tenant, the required deposit has not been made. (Code 1976, ~ 36.99) Sec. 44-129. Closing-of accounts. Own'ers or consumers desiring to discontinue the use of water shall give notice to the city water division. The meter will be read and a fmal bill computed. If the customer is transferring within the system, the tmal balance will be transferred to the customer's new account, and will be subject to the normal collection procedures for active ac- counts. If the customer is discontinuing service on the city water system, the final bill will be ren- dered to the customer and will be subject to the normal collection procedure for fmal bills. (Code 1976, 9 36-100) Sec. 44-130. Use of IU'e hydrants restricted. No person, except members of the fire depart- ment, street and sewer departments, or employees Supp. No. 16 2834.4 - -- --- ~;,_::3 ;:~;~ f.?:~~ . -"'~-'~ ; ,'. C.)'fr~ . ... . ". - ,ift,"J'.... _ ~ 't~~>?;.~;.~,~ .----- ) I. I I L___ =-------- ....--..- .f