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Supreme Court: City is not responsible for raw sewage flooding Billings couple's home – Daily Montanan [1]

['Darrell Ehrlick', 'More From Author', '- July']

Date: 2022-07-07  

In a 5-2 split decision, the Montana Supreme Court has said that the City of Billings should not be held liable for municipal sewer back-up that nearly ruined a Billings Heights couple’s home and left them having to pay thousands out-of-pocket in repairs to make it livable.

The case, which has been winding its way through courts for more than a year, started when a municipal sewer line backed up, likely because of grease in the main, and flooded Jeremy Taylen and Ariane Wittman’s residence with raw sewage. The aftermath included disaster restoration services and contractors who had to take half the home down to the studs.

In a lawsuit, the couple alleged that the city should have been liable for the damages because the house was required by law to have a sewer connection, and it was that line that had caused the damage, under a legal concept called “inverse condemnation.” That principle states that government may be liable for damages when something it owns or its action causes damages, even if inadvertently. The concept is rooted in the U.S. Constitution where government cannot take property without just compensation.

“For a damage claim less than a complete taking, the property must have been damaged to such a degree as to constitute a permanent taking of the property, and not merely have caused an infringement upon enjoyment of the property, a temporary damage, or a damage common to the public at large,” said the majority opinion written by Justice James Rice. “Cases in which property owners have succeeded in sewage or flooding takings claims have involved repeated or chronic invasions that permitted a jury to consider and find that the government, by failing to correct the source of repeated overflows, acted intentionally or foreseeably.”

The problem is complicated by the fact that insurance companies only cover systems owned or maintained by property owners. In this case, the couple’s home insurance didn’t cover the back-up because the problem happened with the sewer system, something owned and maintained by the City of Billings. That means with neither the city nor insurance covering the bill, the cost will fall to Taylen and Wittman.

The Montana high court ruled that the couple had not proven that the city could have reasonably foreseen or prevented the back-up, that it was likely the result of misuse by other residents and not the city’s fault, and that putting grease or other debris down the lines was not how the sewer system was designed to work.

However, Justice Dirk Sandefur, who authored the dissent, wrote that Montana’s Constitution confers even more protections on residents than those by the federal constitution. Sandefur pointed out that both the 1889 and 1972 Constitutions state that “private property shall not be taken or damaged for public use without just compensation.”

Sandefur’s 67-page dissent, nearly three times as long as the majority opinion, said that historically Montana courts have recognized the concept, but the Montana Supreme Court has continued to get “inverse condemnation,” or “takings,” incorrect. Sandefur’s dissent provides an outline of how he would correct the challenge in Montana.

“In 1903, we admonished that the broader fundamental Montana constitutional right to just compensation for private property damaged for or by public use must be strictly enforced and not ‘frittered away by construction,’” Sandefur wrote.

Justice Ingrid Gustafson joined Sandefur in the dissent.

They said that Montana’s constitution and the legal concept of inverse condemnation, which doesn’t require proof of negligence, should be sufficient to cover the Billings couple’s claims.

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