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Property Damage & Personal Injury: Early Case Assessment


In a property damage suit resulting from a sewer failure, how did a homeowner and the municipality in which he resided come to an early understanding over the claims and defenses between them?

What Happened?

The homeowner experienced a flooded basement from a “dry weather” sewer backup, which caused substantial property damage as well as personal injury to the homeowner.  Looking for an alternative forum outside of the courthouse, he wanted to convince the municipality of the validity of his claim, and sought to resolve the matter promptly and reduce his own stress. The municipality was prepared to shield itself by claiming governmental immunity, and agreed to utilize early case assessment to investigate the fact necessary for its defense.  Both parties were genuinely interested in exploring an early settlement and avoiding drawn-out litigation.

Special Considerations

Though the case had been filed, discovery had not yet commenced when the PREMi mediator got involved.  In anticipation of litigation and with the aim of resolving the matter quickly and less expensively:

  • The municipality wanted to determine the extent of the homeowner’s alleged damages, which included allegations that a substantial number of items had to be destroyed to mold caused by the sewer backup
  • The municipality also needed to evaluate the personal injury claims in light of the fact that homeowner’s immune system was compromised due to cancer treatment he had been undergoing at the time of the incident
  • Both sides were able to gauge how the homeowner would come across as a witness at deposition and trial given his frail health and highly emotional state

How Did PREMi Help?

After one of the parties contacted PREMi to assist in identifying a mediator with the necessary technical qualifications and municipal affairs experience, both sides decided on an appropriate specialist who then:

  • Conducted several conversations with counsel for each party to discuss the objectives and expectations of the early case mediation
  • Executed an Agreement to Mediate with confidentiality provisions, pursuant to which the parties agreed to defer formal discovery until completion of the hearing
  • Permitted the municipality’s insurance representative to attend the proceedings
  • Assisted the homeowner in categorizing his damages, and solicited the municipality’s reaction so thehomeowner could augment and refinehis claims
  • Helped the homeowner to consider that satisfactory compensation for the property loss might lessen the need to aggressively pursue his personal injury claim
  • Elicited critical facts regarding the homeowner’s compliance with statutory notice provisions, causing the municipality to reassess the merits of its governmental immunity defense

What Was the Outcome?

The PREMi mediator helped the parties realize that neither side had sufficient information to reach a settlement at the hearing, and persuaded them to focus on specific issues and tasks, including adding the plaintiff’s insurance agent and remediation and cleanup contractors to the lawsuit.  As a result of this process:

  • The parties achieved mutual respect and improved their understanding of each other’s position
  • The homeowner more clearly understood the procedural hurdles and uncertainty of his strategy
  • The municipality developed a sense of how credible and sympathetic the plaintiff would be under examination, and reevaluated the viability of its governmental immunity defense
  • Both sides were able to then direct their time, money, and efforts in a more cost-effective manner, and agreed to reconvene a mediation hearing when the additional steps were implemented and the necessary information became available


Disclaimer: This summary is illustrative of the types of cases and the manner in which the PREMI associate dealt with the matter. Care has been taken to avoid disclosure of sensitive or confidential information.