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The Journal Gazette

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Saturday, August 11, 2018 1:00 am

City not liable for sewer backups

Judge rules against insurance company

MATTHEW LEBLANC | The Journal Gazette

The city is not liable for insurance payouts to 20 Fort Wayne residents whose homes were damaged when water and sewage flowed into their basements when it rained, an Allen County judge ruled this week.

Indiana Farm Bureau Insurance paid thousands of dollars in claims from residents after three “rain events” in 2013 and 2015. The company sued the city, seeking reimbursement for the money it paid out and arguing that officials were negligent in operating, managing and maintaining sewer systems.

But Farm Bureau failed to show exactly how the city officials were at fault, Allen Superior Court Judge Craig Bobay wrote in a decision filed Thursday. The city is protected by a state law that shields cities from liability in certain situations, Bobay wrote.

“The court now concludes that there are no genuine issues of material fact regarding the city's actions in designing, constructing, operating, controlling, maintaining and repairing the city's sewer systems,” his decision states.

The insurance company paid more than $11,600 to Linda Hammer after her home was “invaded” in June 2015 by rainwater and sewage. It sued the city last year, court records show.

An earlier lawsuit alleged the city was responsible for payouts to 19 other residents whose homes were damaged from rain and backups in April and May of 2013. That lawsuit does not specify how much was paid to the homeowners.

Bobay heard arguments July 9 on both cases from lawyers for the city who asked him to rule in their favor.

The judge ruled Farm Bureau did little to show that the city's actions led to the damage left by the sewer systems.

Instead, the company offered only “hypothetical scenarios” that might have led to the backups, he wrote.

The city argued it is protected by governmental immunity, which protects municipalities from being sued. Bobay agreed, citing a portion of the law that shields governments from liability if damages result from “the performance of a discretionary function.”

Bobay wrote that city work to design, construct, operate, control, maintain and repair sewer systems “are of a planning nature, and are thus discretionary.”

Farm Bureau was ordered to pay unspecified court costs.