Frequently Asked Questions
Did the State of Michigan Do Anything Wrong in Bringing About the Collapse of the Edenville Dam?
When the federal government revoked Boyce Hydro’s license to generate hydroelectric power from the Edenville dam in 2018, the Michigan Department of Environment, Great Lakes & Energy (“EGLE”) assumed jurisdiction over what was undisputedly a dangerous and unsound dam structure. State Law requires EGLE to always protect the public safety by making sure that any enlargement of an impoundment or repair of a dam under its jurisdiction is safely carried out under a permit issued by EGLE. Under the permitting process, EGLE was required to carefully assess each dam under its jurisdiction to ensure that the structure does not endanger persons or property. EGLE had a statutory duty to perform its work in a prudent manner to protect all persons who could be harmed by the collapse of the Edenville dam. The dam safety division of EGLE has been chronically understaffed and underfunded. There are 2,600 dams in Michigan and 80% of them are well beyond the 50-year-old safe life cycle. More them 1,500 of these dams are under EGLE jurisdiction. There are only 3 EGLE employees assigned to manage these dams. A 2018 State Report recommended that at least two more employees should be hired to meet minimum staffing requirements.
To read a timeline and chronology of the Boyce Hydro Dam, click here.
EGLE recklessly disregarded public safety when it permitted the influx of water into the impoundment in April and May 2020 knowing that the dam was structurally unsound and could collapse at any time. EGLE failed to order repairs to the dam or take other safety precautions when it had ample time to do so. When weather reports indicated heavy rain was on its way, EGLE failed to open the spillways to draw down water to prevent the dam from failure. These reckless acts and omissions by EGLE contributed to the collapse of the dam on May 19, 2020. EGLE was in a position to prevent this disaster. Having failed in its duty to you, EGLE and the State must be held accountable.
Our team filed a lawsuit on Friday, May 22, 2020 in the Michigan Court of Claims (“Krieger/Sperling Case”) against the State of Michigan to hold the State accountable for the harm it has caused you and your neighbors. The Krieger/Sperling case has been assigned to the Honorable Cynthia Stephens. Judge Stephens has been a respected jurist for decades and is highly regarded for her impartiality, hard work, intellect and willingness to tackle high profile cases against the State of Michigan.
Will the State of Michigan Owe You Compensation for Your Damages Caused by the Dam Collapse?
The State of Michigan can be held accountable for your economic losses, including property losses and loss of property values. The remedy for the harm caused by the State is compensation for your losses. The types of compensation that may be available to you are very broad and include costs of repair or rebuilding of lost structures and land erosion, loss of use of your property, lost rents, profits or diminution of revenue earned from land use, loss of property values and most out of pocket expenses caused by the flood.
The Michigan constitution provides this remedy to you. Under the “takings” provision of the Michigan Constitution, if the State takes your property for say, a road or a public facility, you are entitled to receive fair compensation for the State’s “taking” of your property. If the State engages in reckless conduct causing a loss of your property or a loss of property values, you may recover compensation from the State by pursing a claim against the State the Michigan in the Court of Claims. This type of lawsuit is called a de facto taking or inverse condemnation claim. The Michigan Supreme Court has authorized this type of remedy.
We feel that the best outcome for our clients will be achieved by pursuing their de facto taking or inverse condemnation rights against the State for the harm caused by the reckless conduct of EGLE.
Will Your Team be Suing Other Responsible Parties?
We will be pursuing claims against all individuals and entities who may have contributed to this disaster. All culpable parties will be pursued through additional lawsuits and claims in bankruptcy court.
How is This Case Different from the Other Lawsuits that Have Been Filed in Federal Court?
The State of Michigan has been named as defendant in numerous Federal Court cases. The State is immune from claims of damages in Federal court because of sovereign and governmental immunity. Unless the State elects to waive these ironclad legal defenses, claims for damages in federal court against the State will likely be dismissed. Likewise, lawsuits against the State in State Circuit Court based on various tort laws like negligence, nuisance and trespass are subject to governmental immunity laws which protect it from damage claims.
Are there Special Rules Connected with a Court of Claims Lawsuit?
The Court of Claims has a special process which must be followed in all civil cases. You are required to file a lawsuit against the State of Michigan or file a Notice of Intent with 6 months of May 19, 2020 or November 19, 2020. If you are not sure if a Court of Claims lawsuit is your best option, you should still file a Notice of Intent by November 19, 2020. If you file the Notice by November 19, 2020, you will have another 2.5 years to decide whether you wish to pursue a lawsuit. We can help you with the filing of a Notice of Intent to preserve your right to sue the State of Michigan.
Will the Krieger/Sperling Lawsuit be a Class Action or a Group Action?
Our current assessment is that it would be best for you and your neighbors if you pursued a group or collective action as opposed to a class action. A group or collective action is a type of lawsuit where hundreds if not thousands of individual claimants are joined in one large case. A class action is limited to a handful of class representative who undertake the responsibility to represent many unnamed claimants. Although the lawsuit models are similar, there are many differences which are important.
First, in a class action, the lawsuit is initiated by class representatives who may be appointed to represent all the unnamed property owners who wish to participate anonymously. This model works best where there are many potential claimants and their identities are not readily known. In this case, every potential claimant can be readily identified making this case more suitable for a group action.
Second, although it is expected that defined categories of damage will be similar across all claimants, your individual damage claim will be different and may require specific evaluation and work up to maximize your damage recovery. As part of a group action, your claim will receive the individualized attention it deserves. A group action is more compatible with a case where your claim may require individualized attention.
Third, in cases of this magnitude, whether styled as class or group action, settlements are often achieved through the creation of an aggregate pool of money set aside by the responsible parties for resolution of all claims through an administrative process. In a class case, individual claimants have very little input into shaping the settlement or the administrative process that is put in place to resolve claims. In a group action, you and your attorney can decide if the proposed settlement is adequate or fair to you. With a class action, you will have much less flexibility in negotiating and shaping the contours of the settlement fund or the administrative plan designed to distribute awards.These are some of the main points we considered in deciding whether this case should proceed as a class or group action. In our judgment, the group action model is better fit for what you are facing in your effort to secure fair and adequate compensation for what you have endured.
Do the Two Michigan Law Firms Prosecuting the Claims Against the State of Michigan Have the Expertise to Achieve a Successful Outcome?
The Firm of Pitt McGehee Palmer Bonanni & Rivers (website available here) has been in existence in Michigan for 28 years. The Firm has successfully handled complex lawsuits against the State of Michigan including the Flint Water Crisis cases, the Unemployment Fraud cases, two class actions against Michigan Department of Corrections. Our team can handle all aspects of this case including discovery, motions, trials, and appeals if required. We have the skills and resources necessary to prosecute this case. The Michigan law firm of Stern Law, PLLC, has protected victims of corporate and governmental wrongdoing for over forty (40) years. You can read more about the firm by clicking here; you can read about the firm’s founder, Kenneth Stern, here. The firm concentrates on complex individual, and mass and class action cases involving environmental issues, including the Flint water litigation against the State of Michigan, product and medical liability, and drug and medical device litigation.
What Are My Obligations for Attorney Fees and Lawsuit Costs?
The Pitt Law Legal Team will represent you through a contingent fee contract. If we are successful in securing for you satisfactory compensation, our fee will be 1/3 of the net amount you receive. If we do not succeed in securing a satisfactory resolution of your case, we have not earned our attorney fee and you will owe us nothing. We will advance the cost of litigation and if successful we will recover those costs from you on a prorata basis
What Do I Do if I am Interested in Retaining Your Legal Team or Have Questions?
Please fill out the contact form and a member of our staff will make an introductory call you to you. Your questions about the case or the firms involved in the handling of the case will be answered at that time. If you would like to discuss your options with one of our attorneys, a staff member will assist you in scheduling a telephone or Zoom video conference call. There is no attorney fee for the initial confidential attorney review of your case or concerns. If you are interested in learning more about the case or reviewing your options with us, we will send you the Edenville Flood Intake Package consisting of a detailed claim form, a standard contingent fee contract and other useful information about the case.
