Ingrid Mezo

A $4 million lawsuit against the Town of Thurmont for property and emotional damages to residents whose homes were filled with sewage two years ago is expected to go to trial Oct. 31, attorneys for the town and plaintiffs said in phone interviews Tuesday. A mediation is scheduled for Sept. 8.

"The main defense is that we do not believe that the town has any liability because this is the result of a 100-year flood, an enormous rainstorm that resulted in a flood," said Ralph Arnsdorf, attorney for the town. "And the town is not responsible for acts of God. They have an appropriate amount budgeted for their sewer systems, that's why people have homeowner's insurance."

The suit resulted from several flooding incidents in May 2003, when several inches of rain fell in the area, causing sewage to back up into the homes of eight families, mostly residing on Ironmaster Court.

During the town's sewage backup, muck from the pipelines spewed from toilets and faucets in residents' homes.

In the months following the incidents, citing dissatisfaction with settlement offers from the town's insurance company, homeowners Wayne and Tina Brown, Ron and Kathy Bishop, Harold and Paula Furr, John and Kim Lavigne, Andrew and Beth Linker, Paul and Mariola Matweecha, Robert and Rachel Patrick and Randy and Holly Valentine filed suit against the town for on June 24, 2004. According to court records, the residents accused the town of "failing to properly design, construct and/or maintain the Town of Thurmont's stormwater and sewage systems."

The residents are also suing for trespass and private and public nuisance, said Brian Jablon, attorney for the homeowners. Trespass refers to the actual encroachment of the waste products on the residents' homes, Jablon explained. Private and public nuisance refer to an "unreasonable interference with someone's property."

Some of the plaintiffs are suing for emotional damages caused by having to live with the sewage in their homes. Some needed to live in a hotel, with family, or in a motorhome in their driveways while their homes were repaired.

"There's a good amount of property damage and we've filed suit for the decrease in value of the homes. and the emotional injuries cause by the occurrences," Jablon said. "[The claims] project the value of homes in the future."

But, the amount of actual property damage paid out by the plaintiff's homeowner's insurance companies is significantly less than the amount the plaintiffs are asking for. State Auto and Property and Casualty Insurance Co. is suing for about $41,000, said Joseph C. Wich, an attorney for the company. The amount the homeowners insured with the company are suing for is $116,375.

Insurance companies are allowed to file suit to recoup some of the money that they paid out to homeowners.

If the jury finds in favor of the plaintiffs, some of the money they are asking for will then go to the homeowner's insurance companies.

While only two of the homeowner's insurance companies have joined so far, Wich said he expects others will join later.

The homeowner's insurance companies claims might actually work in favor of the defense in the pending trial, because they indicate how much the insurance companies already paid out to homeowners to repair their homes, and could serve as an indication that the problems have already been addressed.

"We haven't seen any indication that anyone's property had diminished in value as a result of anything that happened," Arnsdorf said.

The homeowners argued that the appraisals for their homes are coming back at 50 percent of the market value, as compared to other homes in the area. If a buyer came to look at a home, the current homeowners would be forced to disclose the flooding by law.

In addition, some of the homeowners lost computer equipment totaling $61,000, besides incurring damages to their homes, they told The Gazette in 2004.

Town officials said that the sewage problems are not something they could have been expected to know about before they happened, and that they have major steps to repair the sewage system since learning of the problems.

The town conducted an engineering study last fall to uncover where the worst pipeline problems in town are and has set aside $1.1 million in the budget this year to repair the most damaged pipes in the first phase of repairs, Mayor Martin Burns said Tuesday.

Burns pointed out that the combined connection and impact fees for building a new home went up significantly as a result of the town's study last fall. The costs went up from $5,000 for water and sewer connection fees to $12,000 this year for combined connection and impact fees. Impact fees also cover roads, parks, and state mandated enhanced nutrient removal, Burns said.

The town hopes repairs will begin in the winter, and expects this first phase of repairs to the sewage system to take 180 days to complete, Burns said.