Insurance Shenanigans Confirmed

“Please be advised that there is no coverage available to our insured in this matter.”

 

[Note: A quick re-read of our post of April 24 ⎼ titled “Is Delmont Borough Insured?” — will be helpful to your understanding here.]

Here is an approximate timeline with regard to the insurance claim submitted by Delmont Borough solicitor Daniel J. Hewitt (McDonald Snyder, P.C, Latrobe, PA) relevant to damages perpetrated by the Borough to our properties in Salem Township through excessive storm water runoff and discharges of untreated sewage on a nearly unabated basis the week of February 16 ⎼ 25, 2018:

Tuesday, March 13 - We made a presentation to Borough council of photos of sewage discharges onto our property and into Beaver Run as specifically documented on February 16, February 19, February 22, and February 25, and of photos taken on March 4 documenting the "aftermath" of those discharges. The white debris documented in that set of photos is pulverized used toilet tissue and other unsanitary matter hanging from the manholes and covering swaths of property in paths leading directly to Beaver Run. Additional photos presented were of erosion and other damages to streams, fields and mature trees on our property as a result of the Borough's excessive direct storm water run-off and of the trash and other debris left behind. Mr. Hewitt requested a copy of the photo presentation for submission of a claim to Employers Mutual Casualty Company (EMC) under the Borough's general liability policy.

Wednesday, March 21 - With regard to the sewage discharges, Mr. Hewitt issued to us on his law firm's letterhead a statement that "Pending the review and evaluation of your claim by the insurance company, the Borough will not be taking any further action at this time regarding the manhole lockdowns which you have requested." - essentially stating that Delmont Borough intended to continue to perpetrate damages to the property for an unspecified period of time.
[note that a copy of this letter is included as part of our April 24 blogpost titled "Is Delmont Borough Insured?"]

Friday, March 23 - The property owners issued an official order to the Borough to cease and desist its illegal activity with regard to our property:

"... Delmont Borough has willfully and with reckless disregard trespassed and acted to commandeer private property for the purpose of illegally discharging its waste into the Beaver Run in violation of the Pennsylvania Clean Streams Law and the U.S. Clean Water Act and to impose illegal limitations on the use and enjoyment of this private property by the Rock Springs Trust and its beneficiaries. With and through this communication, the Trust demands that effective immediately Delmont Borough cease these illegal sanitary sewer system discharges and desist from such discharges and any other infringement of or trespass to Rock Springs Trust property rights in the future."
[Rock Springs Trust holds the subject property in Salem Township]
[note that a copy of this letter is included as part of our April 15 blogpost titled "Property Owners Issue Cease and Desist Order to Delmont Borough"]

Tuesday, April 10 - Notwithstanding the order to cease and desist issued by us to the Borough on March 23, the property owners issued a response to Mr. Hewitt's letter of March 21, questioning the logic and reasoning behind the Borough's submission of the insurance claim.
[note that a copy of this letter is included as part of our April 24 blogpost titled "Is Delmont Borough Insured?"]

Friday, May 4 - Mr. John Kapusnik (West Penn Claims Adjuster, Lower Burrell, PA) made his inspection of the affected Salem Township properties and discussed these matters at length with the property owners/representatives in order to perform an evaluation of the claim.

Tuesday, May 8 - Borough council member Rebecca Matesevac announced at council's May 8 meeting that EMC Insurance had declined to renew the Borough's coverages effective with the new plan term beginning June 1.
[We add a disclaimer here that we have no way of knowing whether the May 4 inspection by Mr. Kapusnik and the May 8 announcement by Mrs. Matesevac are in any way related and it is not our intention to make such an implication here.]

Throughout June and July, frequent inquiries were made of Borough council and of Mr. Hewitt via email and at meetings of Borough council as to status of the claim. The responses to our inquiries were a running refrain that the Borough “had not heard” “were still waiting to hear” “had no information to report” from the insurance company.

Tuesday, August 14 - Finally, at the August meeting of council, following yet another "we have no information to report" response from the Borough, a representative of the affected properties asked in exasperation, “Well, do you WANT to know? Because you can log in to the insurance company’s website right here, right now, and look up: the policy details, all past claims, the status of all current claims.” Council president Andrew Shissler was not inclined to “take up the time from the meeting” to do this, but we were assured that Mrs. Matesevac would "look into this" and “get back to us” later that week.

Tuesday, September 4 - Following yet another series of inquiries from us, we received this response from Mr. Hewitt: “As of today, the Borough has not received any formal response from or action by the insurance company on the claim filed and investigated.”
[note solicitor Mr. Hewitt's use of the word "formal" here]

Wednesday, September 5 - Taking matters into his own hands, the property representative simply called EMC Insurance Companies (Pottstown, PA) himself. Twelve short minutes later he had gained an understanding from a claims representative as to the status of the claim and that we would shortly receive written confirmation of that status.

Tuesday, September 11 - At the September 11 meeting of Delmont Borough council, in response to pointed questions posed by representatives of the affected properties, Mr. Hewitt confirmed in no uncertain terms that Delmont Borough has sole authority over its sewer system situate in and through our Salem Township properties. He did also confirm that the DEP [and thus, the LAW] does not allow for the discharges being perpetrated to the property and into Beaver Run by Delmont Borough.

Tuesday, October 9 - At Borough council's meeting of October 9, we were able to publicly announce the following with regard to claim number 1396684:

Debbie K. Conrad, Claims Supervisor with EMC Insurance Companies, advised us, in writing, last Friday, October 5: "Please be advised that there is no coverage available to our insured (that is, Delmont Borough) in this matter.”
[this was an email communication sent directly to a representative of the affected properties]

Also at the October 9 meeting, solicitor Mr. Hewitt publicly confirmed his understanding of the legality of our order of March 23 that the Borough cease and desist its illegal activity with regard to our property.

On Wednesday, October 10, we received an official letter from EMC Insurance confirming that the claim has been denied:

Mr. Hewitt has confirmed that Delmont Borough has sole authority over its sewer system. Thus, the Borough is wholly and solely responsible and accountable for the damages resultant from the sewage discharges that have been specifically directed onto our property through the Borough's manipulation of manhole configurations (the active removal of lock-down lids). The Borough has no insurance coverage in these matters ⎼ not for the damages perpetrated by the Borough that week in February; nor for damages perpetrated to the property by the Borough as recently as Saturday, October 6; and not for documented sewage discharges on many dates in between.

Given solicitor Mr. Hewitt’s professional expertise and long association with the Borough (which began in 1997) and his certain knowledge of and about these illegal sewage discharges, it is inconceivable that he would not have had a clear understanding prior to submission of this insurance claim that there is no coverage available to the Borough in these matters. It is inconceivable that Mr. Hewitt would not have communicated to elected Borough officials past and present ⎼ on multiple occasions, through many years ⎼ the full extent of the Borough’s considerable risk of financial exposure in these matters.

* * *

It has now been confirmed by an independent third party that, as we deduced some time ago, Delmont Borough is not insured for the damages it perpetrates to our property.

Yet the damages persist, even in the face of our order to the Borough of March 23 to cease and desist from its illegal activity relative to our property.

Let us not forget, also, that the illegal discharges of untreated human waste onto our property flow directly into Beaver Run, a significant source for municipal water provided to consumers by the Municipal Authority of Westmoreland County.

It is well documented, even within the official minutes of the Borough's public meetings, that elected Borough officials past and present, and the Borough’s solicitor and consulting engineers of long association, have known of loss in progress with regard to our Salem Township properties for many years.

One wonders: Is Mr. Hewitt now interested in testing the limits of the Borough’s Public Officials Errors and Omissions insurance safeguards?