If you were in an auto accident, would your principal source of information about your rights be the other driver’s insurance company? Probably not.

Last week, I wrote about a Whitewater resident who experienced approximately twenty-thousand dollars in damage from a municipal sewer backup. The story received coverage in Madison and Milwaukee, and I posted about it. See, Accountability Begins….Somewhere Other than in Whitewater, Wisconsin. Yesterday, I posted a follow up. See, Inside (Whitewater) and Outside (America).

(Note: I have no connection whatever to Lt. Cull. My remarks are wholly my own.)

Appearing immediately below are Whitewater City Manager Kevin Brunner’s remarks, in full, on the property damage. They’re part of his August 28th Weekly Report, available online.

Afterward, I’ll offer a detailed reply.

1. Sewer Backups

There has been much media attention this past week to a recent sanitary sewer back up that affected First Lt. Joseph P. Cull?s property on Park Street in the city. We are, of course, concerned about any property owner who has such an incident happen to them. Doubly so, in this case, because Lt. Cull needs to deal with it while serving his country thousands of miles away from Whitewater. I want to briefly explain how Whitewater and other Wisconsin municipalities handle such incidents.

When a sewer back up occurs, and a property owner incurs damage we ask that they file a claim against the city for the damages incurred. In turn, these claims are
forwarded to our liability insurance firm, which is the League of Wisconsin Municipalities Mutual Insurance Company. The League of Wisconsin Municipalities Mutual Insurance Program insures about 320 municipalities around the state of Wisconsin. In order for a municipality to be liable for damage that might occur to private property, it must have prior knowledge of the blockage and upon notice, did not remedy the situation. The municipality has no liability unless it knew or should have known of the existence of the defect.

According to Dennis Tweedale, who administers the League insurance program, since 2003 there have been 363 sewer back up claims filed, 95 of which (or 26%) received payment due to municipal liability. In Lt. Cull?s case, the City did not know about any blockage of the main artery sewer line adjacent to his property and as such the city?s insurance company would not pay for any related damages.

I personally had a sewer back up in my home in a previous community that I lived in and I incurred several thousand dollars worth of costs to fix my basement. Unfortunately, there was no liability on behalf of the municipality nor did I have special insurance that homeowners can obtain to cover such incidents. In addition to picking up such a rider on homeowners insurance to cover such sewer backups, homeowners should be advised that they can install back flow prevention valves that will prevent sewage from backing up into their basements. While, there is certainly a cost to do this, it is a minimal cost and probably less than $100.

Again, First Lt. Cull?s situation is a difficult one. We have been in touch with some community groups that are interested in possibly raising money for him to pay for the damages that he incurred due to this particular sewer back up.

Liability and Insurance Coverage. I truly cannot tell what to make of the discussion — in paragraphs 2 and 3 — about liability and insurance coverage. The remarks in the Weekly Report conflate the two concepts – liability and insurance coverage. They’re not the same, but the would-be explanation of liability in the City Manager’s report apparently mixes the two. Liability derives from an obligation at law, or an agreement between parties. Coverage concerns whether a person or corporation has insurance that will pay an aggrieved person in the event of a claim for money.

They’re not the same.

I’m not sure if City Manager Brunner understands this difference. Perhaps he does, but his description is poorly worded; perhaps he doesn’t and mistakenly believes that denial of coverage operates against liability (as a matter of law).

Brunner begins with simple description of coverage, about submitting a claim to an insurance company: “When a sewer back up occurs, and a property owner incurs damage we ask that they file a claim against the city for the damages incurred. In turn, these claims are forwarded to our liability insurance firm, which is the League of Wisconsin Municipalities Mutual Insurance Company. The League of Wisconsin Municipalities Mutual Insurance Program insures about 320 municipalities around the state of Wisconsin.”

He follows, immediately, not with an explanation of coverage, but of liability, as a principle of law: “In order for a municipality to be liable for damage that might occur to private property, it must have prior knowledge of the blockage and upon notice, did not remedy the situation. The municipality has no liability unless it knew or should have known of the existence of the defect.”

Wow — that’s quite a statement. Brunner’s declaration is unqualified, and completely ignores how any damage came about. Even in the case of sewers, it’s not as simple as Brunner writes.

Here’s what’s ironic: a review of the website of — ready? — the Wisconsin League of Municipalities would have shown Brunner as much. In a February 2009 summary of law on that website, two attorneys, well-known practitioners in municipal law, discuss these issues.

See for yourself, February 2009 Comment — Rising Waters: Municipal Issues When Dealing with Flooding & Water Damage Events.

Brunner also jumps from the “municipality has no liability unless it knew or should have known of the existence of the defect” in one paragraph to “the City did not know about any blockage of the main artery sewer line adjacent to his property and as such the city?s insurance company would not pay for any related damages.”

Too clever by half — look what’s missing. In one paragraph Brunner declares that the standard is “knew or should have known,” but in the next boldly announces that “the City did not know about any blockage….and as such the city’s insurance company would not pay…”

Even in Brunner’s apparently limited understanding of liability, he shifts standards — from one paragraph to the next — entirely omitting “should have known,” and mixing the idea of liability with insurance coverage.

There’s more to the question than that, but I’m not sure whether Brunner sees as much.

Identification. There’s a part of the discussion where City Manager Brunner attempts to identify with the plight of a resident facing tens of thousands of dollars in damage, by mentioning that he once incurred several thousand in a similar way.

It’s hard to imagine that any bureaucrat could be so obtuse. First, that Brunner experienced an injury years ago does not justify allowing a similar injury to go uncompensated now. So much for the City Manager as the instrument of a better community. When there’s a purse string attached, suddenly it’s tough luck, buddy.

Second, few on Earth would consider a well-paid bureaucrat’s loss analogous to the loss of a simply-compensated combat officer.

Third, consider Brunner’s idea of charity for someone who experienced this huge loss: “We have been in touch with some community groups that are interested in possibly raising money for him….”

Possibly.

If you were writing in response to press coverage of this kind of loss from a municipal sewer backup, wouldn’t you try to have a definitive charitable plan, if you were to raise the subject? Is the best you’d offer something that will ‘possibly’ happen? Of course not — you’d have a definite proposal, at the time of your response. (Note – press reports indicate that fellow Marines were already in action to help Lt. Cull.)

Our town’s politics and culture are as distorted as ever.