West Virginia Court Restores $1 Million Jury Award in Flooding Case Posted on December 10, 2014 by Sally Nyemba Upon completion of the stormwater project, Spring Valley residents began experiencing flooding attributable to a “trash track” that the city had installed. The Supreme Court of Appeals of West Virginia restored a $1 million jury award in favor of homeowners after a badly-maintained municipal storm water flooded their homes. The court reversed and remanded the decision back to the Circuit Court of Wayne County. The homeowners Jeanie Brooks, Walter Boyle, Vaughna Boyle, Bernie Thompson, and Nancy Thompson of the Spring Valley neighborhood in Fredericksburg, VA, had appealed the lower court decision. The verdict recovered damages for their diminished home value and repair costs. Defendant City of Huntington was responsible for constructing and managing the Krout Creek Stormwater project, focusing on the “nuisance floodwaters within city limits.” Upon completion of the project, Spring Valley residents began experiencing flooding attributable to a “trash track” that the city had installed. It was supposed to accumulate the debris from the stormwater, however, because the city failed to maintain the trash track properly, the trash track caused the stormwater instead to flood into the Spring Valley neighborhood. Homes lost 35% and 75% percent of their value During a four-day trial, the homeowners contended that the city’s failure to maintain the trash track was the proximate cause of the flooding. The homeowners called an expert who testified that: Because of the flooding, the value of the homes in Spring Valley had “had lost between 35% and 75% percent of their value as a result of the respondent’s negligence.” The flooding permanently diminished the value of the homes in Spring Valley, and that it would be almost impossible For the value to rebound to the pre-flooded era values. The jury found that the City of Huntington was negligent “in its maintenance of the trash track, which proximately caused flooding in the homeowners neighborhood.” The homeowners were awarded damages for the “diminished value of their homes as well as the cost to raise the home’s foundation to prevent additional flooding.” After receiving the jury’s verdict, the City of Huntington filed a motion for new trial, as well as a remittitur. The circuit court dismissed the motion for new trial and granted the remittitur, relying on the long- standing case law established in Jarrett v. E. L. Harper & Son, Inc., 160 W.Va. 399, 235 S.E.2d 362 (1977), which states: When realty is injured the owner may recover the cost of repairing it, plus his expenses stemming from the injury, including loss of use during the repair period. If the injury cannot be repaired or the cost of repair would exceed the property’s market value, then the owner may recover its lost value, plus his expenses stemming from the injury including loss of use during the time he has been deprived of his property. The city argued that the “jury was incorrectly instructed, and that Jarrett stands for the proposition that a plaintiff is entitled only to the lesser of cost of repair or diminution in value.” The circuit court agreed, holding that the homeowners “were only entitled to the lesser of the diminution of value of their homes or the cost of the foundation repair; accordingly, the circuit court remitted the verdict to provide recovery for only the lost value of the homes.” Furthermore, the Supreme Court of Appeals of West Virginia established a new law to govern cases analogous to this one: When residential real property is damaged, the owner may recover the reasonable cost of repairing it even if the costs exceed its fair market value before the damage. The owner may also recover the related expenses stemming from the injury, annoyance, inconvenience, and aggravation, and loss of use during the repair period. If the damage cannot be repaired, then the owner may recover the fair market value of the property before it was damaged, plus the related expenses stemming from the injury, annoyance, inconvenience, and aggravation, and loss of use during the time he has been deprived of his property. The court held that the order of the Circuit Court of Wayne County that granted the city’s motion for remittitur and denied the jury’s award of damages to the homeowners, was to be reversed and remanded for further proceedings. The case is Jennie Brooks; Walter Boyle and Vaughna Boyle, and Bernie Thompson and Nancy Thompson v. City of Huntington, Case No. No. 13-1083, Nov. 13, 2014, Supreme Court of Appeals of West Virginia.