FAQs

Q. What is the significance of the June 28, 2016 scheduling order?

A. We cannot overstate the monumental significance this Order presents in terms of cost and time-savings to our clients. The Order features very important elements not present in an ordinary lawsuit including: elimination of formal discovery and substituting the informal but controlled exchange of information, (2) an accelerated litigation timeline, (3) requiring mediation with a mediator, and (4) compelling the attendance and participation of the U.S. Army Corps of Engineers (the “Corps”) at mediations. The Corps is immune to suit and thus not party to the litigation, but is involved in a written arrangement with the SWB regarding settlement of property damage claims. The Corps argued against participating in the mediations but declined Judge Englehardt’s invitation to stipulate that its approval of settlements was not required. Avoiding this certain source of delay, the Judge ordered the Corps to participate.

 

Q. How long will it take to mediate each claim? What’s involved?

A. The Order breaks the case down into groups of 20 properties. As each group of 20 moves through the discovery and mediation process, a subsequent group of 20 properties follows 30 days later, until all plaintiff properties have completed the process. The Order sets forth deadlines for each Group spanning the course of five to six months: First, Plaintiffs provide information and documents pertaining to property ownership and damage claims in the litigation; Second, the SWB and other third party defendants will conduct a visual inspection of the properties; Third, a one day deposition of the property owner to describe the damage and effect on use; Fourth, the SWB and other defendants will produce documents and information setting forth their position on the claims; Fifth, our consultants and the SWB’s consultants, as well as any interested third party consultants, will attend a meeting in an effort to determine the scope of repair for each particular property; and Sixth, counsel for the parties and the U.S. Army Corps of Engineers (the “Corps”) will attend a settlement conference with the mediator in an effort to resolve the claims prior to trial and formal discovery.

 

Q. When can a plaintiff expect a decision on their claim?

A. Mediations occur every 30 days with mediation of the first Group to be completed by December 31, 2016. Mediation of the second group is to be concluded by January 31, 2017, the third group by February 28th, and so on until all of the Plaintiff groups have had their cases mediated.

 

Q. How was the order of claims to be mediated decided?

A. The Court requested that the first group consist of homes giving the Court a broad and comprehensive overview of the different kinds of claims found throughout the different areas of the Project. Thereafter, Plaintiffs lawyers are free to select properties for inclusion into groups using their discretion.

 

Q. Is it too late for a plaintiff to sign up for the litigation?

A. No. We believe the prescriptive period (statute of limitations) governing the time period within which a lawsuit must be filed or face dismissal has not yet expired, and that sufficient time exists for property owners to sign up for the litigation. However, this is not completely clear since there are arguably two different triggering events that could start the clock running for the prescriptive period. These are either: 1) the date damage was first noticed by the owner, or 2) when the Project is complete. We believe it makes sense to aggressively move forward now with the case, filing now to protect the claims and avoid this argument. This would has the additional benefit of making our clients among the first to commence settlement negotiations.

 

Q. Who can participate? What is the geographical outline of the SELA project? What areas are affected?

A. The action is open to all owners of properties that have sustained damage to buildings and personal property as a consequence of the SELA Project. The homes are generally in the Uptown Neighborhood, and are located on or adjacent to the construction sites on Jefferson Ave., Louisiana Ave, Napoleon Ave, S. Claiborne Ave., and Prytania St.

 

Q. What damages must a property owner have in order to file a claim?

A. To date our inspectors have seen over 150 properties damaged by the Project, and have reported among other things, broken foundation piers, sinking floors, cracked interior and exterior walls, broken sewer lines, and doors and windows that would no longer operate due to building movement. Many homes and business have become uninhabitable or adversely affected due to the constant noise, street blockages, obstructed access, and dust, dirt and debris invading their homes. Small business owners, including landlords, report loss of revenues and decreased rents resulting from obstructed customer/tenant access. Almost everyone described emotional stress and strain resulting from these interferences.

 

Q. Does it cost me anything to file a claim? What’s involved?

A. No, it doesn’t cost anything to join the litigation. However, it is very important to know that this is not a class action case, and if a property owner is experiencing the kinds of damages discussed above, and wishes to participate in the litigation, they must contact the lawyers directly and sign an Engagement Agreement. It is not enough to merely live in the affected areas, you must contact the lawyers and engage them. We have agreed to work on a contingent fee basis and to advance all litigation costs. Property owners pay nothing up front. Our experts evaluate each home individually. Once we receive the executed Engagement Agreement, we will acknowledge receipt and contact the owner schedule an inspection schedule. Should you have any questions please don’t hesitate to contact us directly by e-mail or on our toll-free number (844) 624-5556.

 

Q. What is the settlement arrangement between the Corps and SWB?

A. The SWB and the Federal Government are sponsoring the SELA Project, with costs to be funded 65% by the Corps and 35% by the SWB. However, the Federal Government is paying 100% of the Project costs upfront, with the SWB being given 30 years to repay its share, beginning in 2016. Under the agreement with the Corps, the SWB is charged with settling claims arising out of the Project that must be approved by the Corps. Settlements are deducted from the SWB’s share of the Project costs.

 

Q. The City of New Orleans can’t pay its bills; does the SWB have the money to settle the claims?

A. Yes. The SWB is a political subdivision of the City of New Orleans. It is established as a “special board” and operates independently of City government. It meets the Government Accountability Office criteria for a “stand-alone governmental” entity. It imposes its own taxes, maintains its own investments, bank accounts, has its own assets and liabilities, and prepares its own audited financial reports on an annual basis. The SWB’s 2014 Comprehensive Annual Financial Report (CAFR), the most recent statement available to the public on its website, reports among other things, the following: 1. Total assets of $2.6 Billion; 2. Projected Liability for SELA Project of $66 Million; 3. Unrestricted cash of $38 Million; 4. Restricted cash for capital projects of$93 million; 5. Revenue increase of $153.7 million from the preceding year due to rate increases. Rates are to increase by 10% each year until the year 2020.

 

Q. Is there any truth to reports that the SWB knew in advance that these damages would occur?

A. Yes, the evidence on this is clear. The Corps signed an Agreement stating that the SELA Project creates “[t]he potential… for indeterminate damage to properties or structures within the Area of Potential Effect (“APE”) as a consequence of construction vibrations”. This Agreement calculates the location of the APE where construction vibrations pose the risk of damage to historic properties, and the Construction Impact Zone (“CIZ”) where soil vibration from Project construction may occur. The PA contains aerial maps of the Historic Districts and the APE and CIZ highlighting in red where the anticipated damages are expected to occur. Every one of the Plaintiffs’s properties is located within these areas. (Link to pdf)

 

Q.Was the public misled about the effects of the SELA Project?

A. In our opinion, yes. The public was told by the Corp and SWB on their joint SELA website the following information about the Project: “We do expect some minimal inconveniences such as noise, traffic rerouting and parking limitations. In order to reduce these inconveniences we will: Limit canal construction to 2 to 4 block areas…” As discussed above, years before construction began, the Corps specifically anticipated substantial construction-caused damage to homes and businesses and never advised the public of this fact. Further, the Corps permitted its Contractors to commence work on all of the drainage canals simultaneously, excavating at once the neutral grounds of Jefferson Avenue, Napoleon Avenue, Louisiana Avenue, and South Claiborne Avenue, leaving miles of closed streets, open and incomplete canals, and worksites littered with equipment and materials. This has effectively paralyzed the historic neighborhoods in these areas for years, and caused millions of dollars in property damage.

 

What is the SWB’s Liability for the Damage and/or Obstructed Access to My Home or Business?

The SWB Project constitutes an “inverse condemnation”. Inverse condemnation is a kind of property taking. It is generally any substantial interference with the free use and enjoyment of property by a governmental entity, undertaken for a public purpose. If it has occurred and all of the requisite conditions are met, both the U.S. and Louisiana Constitutions require that compensation be paid to the affected owner.

The Louisiana Court of Appeal decision in Holzenthal v. Sewerage and Water Board of New Orleans 950 So. 2d 55 (La. Ct. App. 2007) is an inverse condemnation case that is strikingly similar to the facts present here. That case presented questions of whether property damaged by a SELA drainage and dewatering project undertaken by the SWB (on Napoleon Ave. in the Broadmoor neighborhood) was an inverse condemnation and if so, whether the homeowners were entitled to just compensation.

Both questions were answered in the affirmative.

In the Holzenthal case, the SWB was sponsoring installation of an underground box culvert just like the ones currently under construction in the Uptown Neighborhood. The surrounding homes next to the construction site suffered substantial damage due to heavy equipment- caused vibration, and ground settlement caused by drawing down nearby wells. Some houses had significant cracking, and in others porches collapsed. The Court found the SWB liable for the full cost of repair of the homes, together with the full cost of repair or replacement of their damaged personal property, and relocation expenses.

Holzenthal is controlling precedent for the claims in this case, and stands for the proposition that the SWB is legally required to make full restitution for all damage resulting from the Project. Restitution will include, where applicable: repair costs for damage to buildings; loss of market value; loss of business revenue; damage to personal property (artwork, furniture, automobiles, etc.); relocation and inconvenience expenses; loss of enjoyment and mental anguish. Reasonable attorney fees are recoverable under La. R. S.13: 5111(A).

The City of New Orleans Can’t Pay its Bills; is this also true for SWB?

No. The SWB is a political subdivision of the City of New Orleans. It is established as a “special board” and operates independently of City government. It meets the Government Accountability Office criteria for a “stand-alone governmental” entity. It imposes its own taxes, maintains its own investments, bank accounts, has its own assets and liabilities, and prepares its own audited financial reports on an annual basis.

For the year 2013, the SWB reported $2.3 Billion in assets, an increase of $133.8 million from 2012. The 2012 increase was realized because sewer and water taxes were raised 10% every year for the next 8 years until 2020; increased ad valorum taxes specifically allocated to drainage projects of 3-millage, 6-millage and 9-millage; and Federal Government grants, FEMA advances and Federal Government debt forgiveness.

Does the SWB have the Financial Ability Pay Our Damage Claims?

Yes. On May 18, 2015, in a Neighborhood Meeting sponsored by City Councilwoman Susan Guidry at St. Matthews Church on Claiborne Avenue, Joseph Becker, General Superintendent for the SWB, told the audience that the SWB “has set aside millions of dollars” to pay damage claims arising out of this Project.

The SWB and the Federal Government are sponsoring the Project, with costs to be funded 65% by the Army Corps of Engineers, and 35% by the SWB. However, the Federal Government is paying 100% of the Project costs upfront, with the SWB being given 30 years to repay its share, beginning in 2016. Under the agreement with the Army Corps, the SWB is charged with settling claims arising out of the Project. Settlements are deducted from the SWB’s share of the Project costs.

Why Pursue our Claims Now and Not Wait until the Project is Complete?

We regard the SWB warily, based upon their methods and tactics used in previous cases, and our experience with similar entities. First, the Project is already behind on its schedule, and the final completion date is anyone’s guess. Second and more importantly, we are concerned that if you wait for completion, the SWB will argue that some or all of your claims are barred because the prescriptive period governing the time within which to file suit, started to run on the date you first noticed damage.

If the SWB succeeds in convincing a Judge of this, some or all of your claims may be subject to dismissal. We think this is an incorrect analysis but, given the SWB’s strategy employed in the Holzenthal case, they seem certain to make the argument. As a result, we believe it makes sense to aggressively move forward now with the case, filing in the next few weeks to protect your claims and avoid this argument. This would have the additional benefit of making our clients among the first to commence settlement negotiations.

When are Inspections Taking Place and Who Will Conduct Them?

We have retained Gurtler Bros. to act as our consultants. They have in-house licensed building inspectors, civil engineers and general contractors. Gurtler Bros. are experts in the Uptown Neighborhood, and have seen hundreds of the homes and buildings during their many years in business. Their engineers have already inspected over two-dozen residences and a Community Center, and confirm that substantial damage has resulted from the Project.

Gurtler’s services will consist of: the inspection of each home or business for damage resulting from the Project; photographically documenting their findings; preparation of a narrative Damage Report for each structure itemizing damage locations and referencing supporting photographs; offering their opinion as licensed civil engineers that the damage is directly related to the Project; and preparation of a Cost of Repair Estimate unique to each structure. Gurtler plans on beginning their inspections beginning in May, and they are in the process of creating their schedule.

How can I get my Property Inspected and Participate in the Case?

Since this is not a class action case, only those participants who have directly signed Engagement Agreements with us will have their homes or properties inspected. We have agreed to work on a contingent fee basis, will advance the costs of the case, and will get paid only if you do. If for some reason we shouldn’t prevail, then you owe us nothing.

Gurtler’s services will consist of: the inspection of each home or business for damage resulting from the Project; photographically documenting their findings; preparation of a narrative Damage Report for each structure itemizing damage locations and referencing supporting photographs; offering their opinion as licensed civil engineers that the damage is directly related to the Project; and preparation of a Cost of Repair Estimate unique to each structure. Gurtler plans on beginning their inspections beginning in May, and they are in the process of creating their schedule.

If you would like to be included in the case and have your home or business inspected, please contact us to obtain an Engagement Agreement. Once we receive your signed Agreement, we will acknowledge receipt and contact you to include your home on the inspection schedule.

Why Shouldn’t I Represent Myself and not Pay Your Contingent Fee?

Even with our contingent fee deducted from a settlement, we are confident that we can obtain a better result than if you represent yourself. While no settlement offers have been made and we cannot predict nor guarantee the future, our opinion is based upon our years of experience, the information gathered to date, and the following:

1. The SWB will do everything they can to pay as little as possible for your claim. They owe you no kind of duty whatsoever (fairness, candor, fiduciary, etc). They are your adversary, and will use every available trick and device available to them. We have already seen the groundwork for this by the disingenuous use of Leonard Quick to conduct his “pre-construction surveys”.

We believe Quick had an undisclosed conflict of interest and certainly a bias against the property owners. In our opinion, access to properties for his “surveys” was likely obtained by less than full disclosure and possible misrepresentation. Clearly his surveys are designed to minimize payments to owners. Because of this, and since his suspect methods include misleading photography techniques and select use of seismographic data, we intend to challenge his opinions and move the Court to exclude his testimony and any evidence he may have obtained.

2. Our job is to maximize your recovery. We owe our clients the highest fiduciary, professional and ethical duties in executing this task. Unrepresented individuals run the risk of being taken advantage of due to unfamiliarity with the issues and tactics, and expose themselves to a resolution of less than full value.

3. There is strength in numbers. We represent a formidable foe. Already we have made the SWB sit up and take notice. We are a large group of damaged property owners backed by experienced trial lawyers. Unless you do this for a living and possess a working knowledge of the relevant law regarding liability and damages, the ability to investigate and present damage claims supported by admissible evidence, and are experienced at successful negotiation of claims against a municipality, a homeowner is doing a disservice to him or herself by attempting individual representation.

4. Unique to this case, you are entitled to an award of attorneys fees under inverse condemnation statute, La. R.S. 13:5111(A). While this is an item of negotiation, it may serve to satisfy the contingent fee. Most importantly, we don’t settle anything unless you authorize it in writing. We work for you. You are part of the process. We keep you in the loop every step of the way.

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