By Leeann Akers - Managing Editor
Nov. 28, 2012 —
An extensive motion requesting information and documents was filed in Carter Circuit Court Monday in connection with a lawsuit against the City of Olive Hill.
The suit was filed April 30 on behalf of several business and property owners who sustained severe damages during the floods of 2010 and had insurance claims denied by the Kentucky League of Cities.
The motion requests email addresses issued to or used by those named in the suit that may have been used to discuss creeks within the city, the sewer or water systems, or any aspect of flooding.
It also requests names and contact information for anyone who handled damage claims or participated in the assessment of damage after the floods in 2010.
Other requests in the 172-page motion are:
•A list of all persons currently and formerly employed by the City of Olive Hill, or who have served as an elected official.
•A list of anyone who provided labor in any alterations or cleaning of Tygarts Creek and Ben’s Run, Mills Creek, Scott Creek and/or Henderson Branch and/or manmade structures in connection with the same and their compensation.
•A list of volunteers who provided services to alter the creeks and/or their banks, in question, and their contact information, from Jan. 1, 2000, to the present.
•All documents from interaction with anyone affiliated with the U.S. Army Corps of Engineers, the Kentucky Division of Water, and any state or federal government agency or institution, its employees or representatives, having to do with recommendations, proposals, instructions, directions, guidelines, suggestions, opinions or advices concerning any matter related to flooding, flood prevention and/or flood mitigation; flooding and/or flood related issues or problems involving Tygart’s Creek, Ben’s Run Creek, the City of Olive Hill; the City of Olive Hill’s storm drainage and/or sewer systems; Mills Creek, Scott Creek and/or Henderson Branch and/or manmade structures in connection with those creeks.
•Any and all flood prevention and/or flood mitigation measures, steps, proposals, recommendations, suggestions, guidelines, instructions offered to the City of Olive Hill by the U.S. Army Corps of Engineers in which the City of Olive Hill rejected, ignored or otherwise failed or refused to implement or utilize.
•A detailed list of each measure, step and action undertaken by the City of Olive Hill to fund flood prevention and/or flood mitigation programs, projects or activities for the City of Olive Hill.
•A dated list of each and every occasion from Jan. 1, 2000, in which the following issues were discussed or commented upon by any person during a regular or special meeting of the Olive Hill City Council: flood prevention; flood mitigation; flooding of Tygart’s Creek; flooding of Ben’s Run Creek; flooding or flood issues concerning the City of Olive Hill’s storm drainage system or sewer systems; options, proposals, or exploration of options or proposals to address flooding, flood prevention, flood mitigation and related issues; cleaning, dredging or excavating Tygart’s Creek or its banks; construction of the earthen berm in or on Tygar’ts Creek; removal of all or part of any portion of the earthen berm in Tygart’s Creek; modification or removal of any portion of the earthen berm in Tygart’s Creek; cleaning, dredging or excavating Ben’s Run Creek or its banks; widening of Ben’s Run Creek; alteration of the banks or any aspect of Ben’s Run Creek; construction, rehabilitation, improvement and/or maintenance of storm drainage or sewer systems and related structures; construction, rehabilitation, improvement and/or maintenance of manmade structures and systems in connection with Mills Creek, Scott Creek and/or Henderson Branch; floods, flooding, flood prevention and/or flood mitigation issues, problems or activities concerning Mills Creek, Scott Creek and/or Henderson Branch; flood damage claim(s); and changes in any utility rate (water, sewer, gas, electric) the City of Olive Hill charged its customers from Jan. 1, 2000.
•A detailed list of each and every complaint made to or investigation undertaken by any state or federal government agency or institution concerning the City of Olive Hill.
The motion also addresses some questions concerning how funds derived from utilities were used, specifically if any funds were used to pay or subsidize – in whole or in part – any flood prevention or flood mitigation activity, program, project or activity involving the City of Olive Hill, Tygart’s Creek, Ben’s Run Creek, storm drain and sewage system, Mills Creek, Scott Creek, Henderson Branch and/or manmade structure in connection with any of the same, after Jan. 1, 2000.
The motion also requests the amount of money the city spent and the amount of debt incurred and the number of manhours committed for flood prevention and/or flood mitigation improvements, construction, repairs, measures, activities, programs, assessments, tests and/or studies each year between 2000 and 2012.
Also requested is the amount of debt the city incurred in connection to flood related damages during those years.
The City, in its response to the suit, claimed that “damages complained of by plaintiffs, if any, were proximately caused by the negligence of third parties for which defendants are not responsible.”
The motion requests a list of the responsible parties, and any supporting documentation that may support the allegation of responsibility.
Also requested are all documents relating to flood damage claims from the 2010 flooding, including those that support the city’s denial of allegations of the complaint.
The City has 30 days to respond to the motion, but will be given “reasonable additional time” to compile the documents and information that is requested.
The suit was filed on behalf of Michael B. Fox, Chesla Fox, Kevin Jordan, Carolyn Reynolds Callihan, Kristie Brown and Gary Brown, Paul Lewis and Sarah Lewis, Terry Thompson, Samuel Lowe, Gene Knipp, Randy Steele, Richard Williams, Alma Sturgill, Donny Owens, Johnny Bill Napier and Cymilee C. Napier, and Louie Keaton.
The action claims that the City of Olive Hill was negligent and added to the severity of the flooding from lack of care of Tygart’s Creek, Ben’s Run Creek, and city drain and sewage systems. It calls attention to several public figures for actions taken or not taken.
Named as defendants are Mayor Danny Sparks, City Clerk Cheri James, current and former City Council members Allen Stapleton, Jerry Callihan, Enoch Hicks, Linda Lowe, Kenny Fankell, Madeline Powell, Tony Williams, and Gayle Smith.
Also named are city employees Larry Harris, Brandon Hamilton, Ray McCoy, Edwin Cook III, Lancer Holbrook, and Jerry Estes.
Additionally, Temple Juett is named in his capacity with the Kentucky League of Cities Inc., and the Kentucky League of Cities Insurance Services Association, Spencer D. Noe acting in his capacity with Collins and Company, William L. Hamilton at the Kentucky League of Cities Insurance Services.
While all persons are named, the complaint only accuses the City of Olive Hill of negligence.
According to the complaint, "the City of Olive Hill failed or refused to properly maintain its sewage and/or storm water drainage systems which caused, contributed, or was a substantial factor in causing the May 2, 2010, flood, and the July 21, 2010, flood, or which caused, contributed, or was a substantial factor in the degree or magnitude of said floods, and the destruction, loss, harm and damages attributable thereto.”
Also addressed are actions that the City of Olive Hill may have taken that directly caused the waterways to rise in the downtown area:
"In or about 2003, Defendant, City of Olive Hill, by and through its employees, agents and/or representatives, entered Tygart’s Creek and its contiguous areas with heavy equipment and manpower, and over the course of a period of months, Defendant City of Olive Hill employed such equipment and manpower to excavate, move and displace tons of dirt, rock, sediment and/or other materials from in and around the creek bed and/or from the banks of the creek thereby excavating a trench extending approximately 800 feet in length."
The institutions and persons associated with the Kentucky League of Cities are questioned for awarding an insurance claim made by Donnie Lykins for flood damage.
He was granted $159,800 while all of the other claims were denied when presented with similar or the same evidence, according the complaint.
Also brought to question in the civil action is the relationship that Lykins had with the Kentucky League of Cities and their affiliates.
"For several years prior to the May 2, 2010, flood, Mr. Donnie Lykins worked for Tom Lykins Insurance, Inc., located in Olive Hill, and during that time, Donnie Lykins generated approximately $500,000 in business annually for the Defendants by selling their insurance policies and by providing related insurance services."
In all, there are 17 claims of negligence for lack of maintenance, inappropriate actions pertaining to the creeks flooding, and bad faith and unfair settlement practices regarding the insurance claims.
Attorneys Reid Glass and Mike Fox are handling the case for the plaintiffs.
Leeann Akers can be reached at email@example.com or by phone at 474-5101.