Michigan bill would make it tougher to sue city over flooded basements

Meghan Bunchman tells us about a proposal moving through Lansing that would prevent flood victims from suing their municipalities.

A House bill that would increase governmental immunity and potentially make it tougher for homeowners to file claims against municipalities for water damage caused by sewage backups has sparked concern from some Michigan residents who say they're worried they'll lose the right to recoup their losses.

The state House of Representatives is set to vote today on House Bill 5282, which would amend the Governmental Immunity Act (Public Act 170 of 1964), that addresses governmental liability for negligence. The House bill was originally introduced Feb. 2 by Republican state Reps. Michael Webber, Dan Lauwers and Holly Hughes.

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The bill, which would have a statewide impact, comes months after a series of storms caused flooding across Detroit and surrounding areas. The bill, if it passes the House and later the Senate, would take effect 90 days after enactment. Webber said it would not be retroactive.

"I would say that there's still definitely an ability to file claims, particularly if the municipality is at fault and they are not keeping up their system," Webber told the Free Press on Tuesday. "What we are trying to address are rainfall events that we do not think occur often at all. We're not trying to take people's ability to file suits.

"...It's also important to note that when these lawsuits occur, it's the taxpayers' tax dollars that are paying these claims out and paying these attorney fees. We feel like that money can be spent to upgrade the system versus paying out the claims."

Attorney Steven Liddle, who said he has represented thousands in class actions  involving sewage backups and other environmental issues, sent an e-mail to hundreds of metro Detroit residents Monday evening, informing them of the vote, which he called irresponsible and concerning. Liddle said he has already heard from several concerned residents.

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"It's the government failing to take personal responsibility and the way they went about this should make people sick," Liddle said. "It's disgusting, particularly in light of Flint. ... No one has asked the people's opinion on this. They're trying to do this on a lame-duck session. It's outrageous. You can't sue, period, even if one rain gauge exceeds 1.7 inches. People need to be outraged about this."

In Detroit, hundreds of homes were damaged during a July 8 flooding this year, which resulted in many basements flooded with sewage-filled water. Earlier this month, the Detroit Water and Sewerage Department announced plans to pay the claims of all residents who are not suing the water department.

“No matter whose fault it is, we’re going to settle all the claims before January,” DWSD Director Gary Brown told the Free Press at the time.

A DWSD spokesman declined to comment publicly on the bill Tuesday and whether any future claims would be honored, and deferred comment to the city's legal department.

Webber said he's not familiar with Detroit's summer floods, but said the bill would not affect anyone currently filing suits.

Detroiter Melody Armstrong said the bill is an unwelcome development for residents who have dealt with a handful of flooding issues within just the past five or so years.

Armstrong, who has lived in Victoria Park near Dickerson and Jefferson since 1992, said she's worried the bill will wipe away the potential claim she was hopeful to receive from the Detroit Water and Sewerage Department.

"These are not black, white, Republican or Democrat issues," said Armstrong, 61. "These are basic human right issues. I've lived here for 19 years without any flooding so please tell me why now all of a sudden we are. We’re at our wits' end. You know why? Because you pay your taxes and you think you can flush your toilet with it not coming back up. What are they trying to do? Make sure we can't hold anyone responsible? I pay city taxes, right? I pay state taxes, right? The problem with this is they want to pass the buck. I say if you’re negligent, you should have to pay."

The bill would amend the definition for a "sewage disposal system event," which is when a sewage system overflows or backs up onto property, clarify design and construction defects and explain notice requirements.

The bill also would add that "a sewage disposal system event does not exist if the rainfall at or near the affected area or within the sewage disposal system service area is 1.7 inches or more in any one-hour period or 3.3 inches in any continuous 24-hour period."

Webber said the new threshold was designed with extreme weather events in mind like the extensive flooding that happened in August 2014 across southeast Michigan.

The Michigan Municipal League, a lobbying group based in Ann Arbor that represents 519 Michigan’s cities and villages — the lion’s share — strongly favors the bill, said John LaMacchia, the League’s assistant director of state and federal affairs.

The League feels the bill is a sensible balance between making cities and villages responsible for what they traditionally have done — that is, carry storm water and sewage away from homes during most rainstorms that a person would encounter in about 20 to 30 years.

“That’s the usual standard for sewer systems. But to expect a municipality to build a system for a storm that supposedly happens once in a lifetime — a 100-year storm — we feel that’s asking for something that’s unreasonable, and it would make taxpayers incur unreasonable costs to build a system like that,” LaMacchia said.

According to Webber and a June House Fiscal Agency analysis, the bill was proposed in response to 2014's flooding. Webber said he also collaborated with Oakland County Water Resources Commissioner Jim Nash and other experts.

According to the June analysis, Oakland County suffered more than $330 million in flooding damages and the city of Warren suffered property losses estimated at $1.2 billion.

"The bill sponsor worked with the Department of Environmental Quality to compile data on rainfall over the last 60-70 years, and to ensure that a municipality is only protected from liability for sewage system failures caused by much higher than usual rainfall," the analysis stated, which added that, as of May 2016, at least four class actions have resulted from the flooding against Madison Heights, Oak Park, Royal Oak and Clawson, as well as Oakland County.

But opponents of the bill have argued that if rainfall is overloading sewer systems and resulting in flooding approximately every five years, either the sewer systems should be upgraded to accommodate the needs, or the affected residents should be able to seek damages from the municipalities in control of those sewer systems.

According to Section 17 of the act, a governmental agency is immune from liability for the overflow or backup of a sewage disposal system unless the overflow or backup is a sewage disposal system event.

Armstrong said her basement has flooded three times — once in May 2011, again in August 2014, and most recently in July of this year. Armstrong said each year the costs to repair the damage has increased, as well as the volume of sewage in her basement. In 2011, she said she paid $2,000 just to clean her basement and in the most recent flooding, she spent $3,300, most of which was out of pocket to clean up nearly 4 feet of sewage and repair damages.

Armstrong said the sewage came up through her toilet and drains.

"We turned the light on and it was, oh my God, all the way up on the second step," she said. "It's to the point now that you don't want to put nothing downstairs of value. We're frustrated. Each time we've cleaned, it's gotten worse."

Armstrong said she submitted a claim to the city on Aug. 17 and has yet to hear anything back. She said she also participated in a number of meetings where officials answered questions from angry residents about the flooding. Some residents said the July storms flooded countless basements with as many as five feet of sewage-tainted storm water.

Armstrong said she believes homeowners across the state should be outraged about the potential bill, not just Detroiters.

"This bill, it does not pass the smell test," she said. "This is for every city in the state; it isn't just us. It could be your neighborhood next."

2016 © Detroit Free Press


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