Saturday, January 29, 2011 12:00 am
A couple whose house under the Rimrocks was destroyed by a falling boulder has asked a District Court judge to order the city of Billings to remove the sandstone debris from the property and to do something about two threatening slabs still attached to the Rims.
The motion, which also asks that the state of Montana be ordered to exercise its emergency powers to do mitigation about the looming problem, was filed Thursday. Judge G. Todd Baugh has set a hearing on the matter for Feb. 11.
The motion and supporting affidavits were filed by Jane Deschner and Jon Lodge, whose home at 1313 Granite Ave. was destroyed on Oct. 9 when a 60-foot section of the Rims weighing an estimated 1,000 tons sheared away, broke into pieces and tumbled onto their property.
In a special meeting on Jan. 3, the City Council voted against a strong staff recommendation to remove a large slab of rock hanging precariously over the Deschner-Lodge property and another over property a few blocks east of there. Both sections of the Rims are city-owned parkland.
In the motion filed by Billings attorney Rodney Hartman, Lodge and Deschner asked the judge to require the City Council "to approve the recommendation its own staff requested."
In the same motion, they ask the judge to order the state of Montana "to reduce the vulnerability of people and communities of this state" as authorized by state law. An attached brief in support of the motion says the state can "partner with the City of Billings and should be mandated so to act," pointing out that the governor can declare a state of emergency to deal with threats like that posed by the Rims.
In their brief, Lodge and Deschner said Lodge noticed last summer that a large stream of water was coming onto his property from atop the Rims. Looking into it, he discovered that the waters were coming from a plugged culvert owned by the state of Montana, and the water was feeding directly into the portion of the Rims that later broke apart.
While their insurer was still conducting its own investigation of the incident, the brief says, the city on Dec. 2 served Deschner and Lodge with a "notice of city code violation."
"Incredibly," the brief says, "the City, after allowing its own huge boulders to crash onto and into plaintiffs' property, claimed the plaintiffs were allowing a public nuisance to exist upon their property."
It continues: "The nuisance, however, was created by the State of Montana and the City of Billings in some combination which will be adjudicated down the road. In the meantime, while the City of Billings and the State of Montana act like fiddling Neros, more very large boulders are ready to plummet."
The brief calls this "an extraordinary case which cries out for specific action to prevent irreparable injury to plaintiffs and, indeed, to several other citizens." In support of that claim, Hartman also filed affidavits signed by three other property owners who live in the vicinity of the Lodge-Deschner property. All of them say they are "gravely worried" about the safety of their property and their lives if the city and state do nothing to address the emergency.
Deschner and Lodge last fall filed a separate suit against Hartford Insurance Co., Sentinel Insurance Co. and the Brickley Insurance Agency, claiming, among other things, that their insurer was negligent for failing to advise them on exactly what their policy should have covered.
In a response filed Jan. 19, Brickley Insurance asked for a summary judgment dismissing the suit, saying it had "no duty to advise the insured of the insured's specific coverage needs or to ensure that the coverage purchased is adequate."
"There is no legal duty in Montana that requires Brickley to have anticipated that the Rimrocks would fall down and to ensure that Plaintiffs' homeowners policy covered that risk," the motion says.
The motion, which also asks that the state of Montana be ordered to exercise its emergency powers to do mitigation about the looming problem, was filed Thursday. Judge G. Todd Baugh has set a hearing on the matter for Feb. 11.
The motion and supporting affidavits were filed by Jane Deschner and Jon Lodge, whose home at 1313 Granite Ave. was destroyed on Oct. 9 when a 60-foot section of the Rims weighing an estimated 1,000 tons sheared away, broke into pieces and tumbled onto their property.
In a special meeting on Jan. 3, the City Council voted against a strong staff recommendation to remove a large slab of rock hanging precariously over the Deschner-Lodge property and another over property a few blocks east of there. Both sections of the Rims are city-owned parkland.
In the motion filed by Billings attorney Rodney Hartman, Lodge and Deschner asked the judge to require the City Council "to approve the recommendation its own staff requested."
In the same motion, they ask the judge to order the state of Montana "to reduce the vulnerability of people and communities of this state" as authorized by state law. An attached brief in support of the motion says the state can "partner with the City of Billings and should be mandated so to act," pointing out that the governor can declare a state of emergency to deal with threats like that posed by the Rims.
In their brief, Lodge and Deschner said Lodge noticed last summer that a large stream of water was coming onto his property from atop the Rims. Looking into it, he discovered that the waters were coming from a plugged culvert owned by the state of Montana, and the water was feeding directly into the portion of the Rims that later broke apart.
While their insurer was still conducting its own investigation of the incident, the brief says, the city on Dec. 2 served Deschner and Lodge with a "notice of city code violation."
"Incredibly," the brief says, "the City, after allowing its own huge boulders to crash onto and into plaintiffs' property, claimed the plaintiffs were allowing a public nuisance to exist upon their property."
It continues: "The nuisance, however, was created by the State of Montana and the City of Billings in some combination which will be adjudicated down the road. In the meantime, while the City of Billings and the State of Montana act like fiddling Neros, more very large boulders are ready to plummet."
The brief calls this "an extraordinary case which cries out for specific action to prevent irreparable injury to plaintiffs and, indeed, to several other citizens." In support of that claim, Hartman also filed affidavits signed by three other property owners who live in the vicinity of the Lodge-Deschner property. All of them say they are "gravely worried" about the safety of their property and their lives if the city and state do nothing to address the emergency.
Deschner and Lodge last fall filed a separate suit against Hartford Insurance Co., Sentinel Insurance Co. and the Brickley Insurance Agency, claiming, among other things, that their insurer was negligent for failing to advise them on exactly what their policy should have covered.
In a response filed Jan. 19, Brickley Insurance asked for a summary judgment dismissing the suit, saying it had "no duty to advise the insured of the insured's specific coverage needs or to ensure that the coverage purchased is adequate."
"There is no legal duty in Montana that requires Brickley to have anticipated that the Rimrocks would fall down and to ensure that Plaintiffs' homeowners policy covered that risk," the motion says.
Contact Ed Kemmick at ekemmick@billingsgazette.com or 657-1293.
