Lawsuit
Chandler council member sues city
By Nathan Straus News Reporter

Coy Ellis, Chandler City Council member, has filed a lawsuit against the City of Chandler. The lawsuit was filed on December 19, 2007; six months after the Ellis home was contaminated by sewage backup on June 16, 2007.

The court document, obtainable through the Henderson County District Court in Athens, states Coy and Barbara Ellis have lived in an RV since June 16 while waiting for the house to be repaired.

Jim Moffeit, Chandler's city administrator, said Ellis has not only filed suit against the city, but also against the city's engineering firm, Wisenbaker Fix and Associates, Inc.

"The sewer backed up into Mr. Ellis' house and he feels the city is liable, so he filed suit against us," Moffeit said.

Ellis' lawsuit alleges negligence on the part of the City of Chandler. According to the document, several factors caused the sewer system to back up into the Ellis home.

The suit read the factors include "the City of Chandler's negligent operation of motor driven equipment which caused damage to, and obstructions in, the city's sewer line; the City of Chandler's negligent failure to properly operate and maintain motor driven pumps in the city's lift stations; and the negligence of Defendants KSA Engineers, Inc. and Wisenbaker, Fix and Associates, Inc. in the design of the city's sewer system and/or improvements thereto."

The suit went on to claim Coy and Barbara sustained actual economic damages well in excess of the minimum jurisdictional limits of the court. The document also claims

he sewage intrusion jeopardized their health, safety and well-being.

Finally, the statement claims there were prior complaints about the city's sewer system.

"Thus, the injuries sustained by Mr. and Mrs. Ellis were foreseeable by the City of Chandler," the statement read.

The document lists the causes of action as negligence and gross negligence, inverse condemnation and nuisance. These causes would need to be proved should the case go to trial.

"Plaintiffs would show that the City of Chandler, through its employees and agents, negligently damaged the city's sewer lines with the use of motor driven equipment and also caused obstructions in the city's sewer line near the wastewater treatment plant with the use of motor driven equipment," was one of the negligence allegations.

The plaintiffs would also have to show the city was warned about the design's possible damage to property near the water treatment facility.

In a Letter to the Editor published October 18, 2007, Chandler Mayor Joye Rains wrote during the time around June 16, the Chandler area was subjected to torrential downpour and was named a disaster area.

"The point is that the city's storm and sanitary sewer system just could not handle that much water, and an act of God does not make the city liable," the letter read.

Further in the letter, the Texas Municipal League's re- sponse to Coy Ellis' original insurance claim stated the damages sustained by Ellis were not caused by any wrongful act, omission or negligence on Chandler or its employees' part.

"The city is legally immune from liability for the property damage claim being brought against it as afforded the city by the common law of Texas," the letter stated. "Although the Texas Tort Claims Act waives this immunity under certain circumstances, the facts of your case and the damages you seek do not fall under any of the waivers set forth in this Act."

Moffeit said on Monday, January 14, he believes Chandler will file a response later in the week.

"Texas Municipal League has liability," Moffeit said. "They will pay if Chandler has to pay."

The City of Chandler buys liability from TML, Moffeit said. The Texas Municipal League chose an attorney for the suit, a normal action for this situation.

James Kaltman, senior claim representative for the TML intergovernmental risk pool, said TML gets claims from all over the state.

"If there's a claim they send it to us and we investigate it," Kaltman said. "We determine if there's immunity and if there's fault."

Kaltman also said the cities covered by TML rarely handle such cases.

"It's sort of handled like car insurance," Kaltman said. "If you get rear ended you turn the claim in and the insurance company handles it."

The TML will try to file a motion for a case dismissal. If this is denied then the goal will be to settle out of court.

"If all else fails we'll go to trial," Kaltman said.