Plaintiffs respond to court filing


By Sandy Rose Schwieterman - For the Sidney Daily News



WAPAKONETA – Plaintiffs are saying that the village of Minster has not provided sufficient evidence to support a claim of immunity from a lawsuit stemming from May 17, 2019 flood that damaged several homes. The village and Helms and Sons Construction and Excavating are both defendants in the lawsuit filed April 15, 2020, for damages in excess of $25,000.

On May 26, the plaintiffs filed in Auglaize County Common Pleas Court their reasons why Minster should not be immune from covering the cost of damage to nine homes along Second Street within a sewer reconstruction project.

In the original lawsuit, filed in Auglaize County Court of Common Pleas, the plaintiffs maintain that actions taken by Minster while replacing a sewer system on Second Street caused sewage and floodwater to come into the basements of their homes on May 17, 2019 during a rainstorm.

Neither the contractor nor the village have admitted responsibility for the damage. The village maintains that state law makes them immune to lawsuits, while the contractor says they were simply following instruction from the village.

Currently, the lawsuit is in limbo as responses are filed for the village of Minster, Helms and Sons and the plaintiffs. Once all responses are filed, presiding judge, Frederick Pepple of Auglaize County Court of Common Pleas, decides if the Ohio Revised Code (ORC) protects the village from liability for damages while they perform their duties.

In response to the request for immunity, Sean Alto of Cooper Elliott, lawyer for the plaintiffs, said the village’s argument regarding reinstatement of immunity falls short and offers no real explanation about what “exercise of judgment or discretion” it engaged in before directing Helms & Sons Excavating, Inc. to destroy the sewer line at issue.

Specifically, the rebuttal says “Under the Contract, the work to be performed by Helms included the installation of storm sewer modifications, water main, sanitary sewer, service laterals, sidewalks, curb and gutter, and installation of a sanitary sewer down a portion of Garfield and Second Street. Nothing in the Contract called for the destruction of a sewer system. Helms began working on the project on or about April 22, 2019.”

The rebuttal goes on to say that, “During the initial phase of construction, Helms discovered a sewer line on Second Street and reported the discovery to the Village. The Village of Minster told Helms that the sewer line was abandoned and instructed Helms to remove the abandoned sewer line, which constitutes destruction of a sewer system pursuant to R.C. § 2744.01.”

The rebuttal concluded that “The Village of Minster’s motion to dismiss is based on a misreading and misapplication of Ohio law. As set forth above, Plaintiffs’ Complaint easily clears the pleading burden under Civ. R. 8(A) by pleading claims for which relief can be granted against the Village—specifically, negligence (for which immunity does not apply) and third-party breach of contract. The Village’s motion is based on numerous factual assumptions that are outside the scope of Civ. R. 12(B)(6) and are not contained in the Complaint. For these reasons, and the reasons set forth above, the Village of Minster’s motion to dismiss must be denied.”

The village of Minster, represented by Jared Wagner of Green and Green of Dayton, have until June 2 to file a final response.

Once both parties have filed their responses, Judge Frederick Pepple will then rule whether Minster will lose its immunity coverage.

Although the lawsuit claims in excess of $25,000 in damage to the properties, a final dollar figure is not yet determined. The plaintiffs are Edward and Lisa Goebel, Maria Dahlinghaus-Poeppelman, Mitchel Poeppelman, Maurice and Grace Boeke, CraieSherman, Chris and Christine Van Iderstine, Josephine Corbit, Tyler Meiring and Renee and Jay Purpus.

By Sandy Rose Schwieterman

For the Sidney Daily News

The writer is a regular contributor to the Sidney Daily News.

The writer is a regular contributor to the Sidney Daily News.