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DR9306-CS 960916 MEMORANDUM To: Peter G. Smith, City Attorney From: Kenneth M. Griffin, P.E., City Engineer ~ RE: Don Jones property, Stream G6 Project DR 93-06 Date: September 16, 1996 With this memo I am attaching correspondence concerning the Don Jones property and a lawsuit between Don Jones and the contractor hired by the City, M.A. Vinson. A brief history of the situation is that on May 5, 1995, during the construction of drainage improvements adjacent to Don Jones property, a torrential rainstorm came through the metroplex. Because support for a retaining wall had been removed, that retaining wall failed and Mr. Jones claims that there was some shifting of his property which resulted in damages to his pool and his home. It should be noted that the retaining wall itself was constructed in a City easement and that we have several folders of a previous lawsuit between Mr. Jones and the City of Coppell concerning that particular retaining wall. (It might be beneficial to peruse that information.) To resolve this issue, the City had numerous conversations with Mr. Jones and went so far as to hire a geotechnical firm to evaluate what had happened in the area. The final opinion of the geotechnical firm was that the retaining wall did not contribute to any perceived damage to the pool or to the home. The City has been persistent in trying to get this issue resolved so that we can final out a project that should actually have been completed over a year ago. The following is my analysis of this particular situation: On March 29, 1996 I met with Don Jones and his wife concerning perceived damages to their property. We did not have hard cost in front of us but we did talk in generalities and tried to estimate cost. We identified broad categories such as: irrigation systems; landscaping; fence replacement; wall replacement and pool. We estimated the cost for each of those broad categories and came up with a total of approximately $17,865.00. After additional discussion, it was discussed with the Jones' whether or not a lump sum settlement for $25,000 would take care of all issues associated with this project. Please note that the issues we talked about included the wall, irrigation system and the landscaping. Mr. Jones requested a check almost immediately. However, the dollar amount exceeded our ability to cut a check without Council approval. Therefore, it had to go to Council for approval. As can be seen by a fax from Mr. Jones to Jim Witt on April 12, 1996, Mr. Jones agreed to reduce the original $25,000 by $5,000 with his own notation that that $5,000 included the cost of the retaining wall. So again it can be seen that the retaining wall was initially included in any settlement offers. Mr. Jones stated that if the City would replace the wall he would agree to take the $20,000 in a settlement of $15,000 and $5,000. He followed that up with an April 15, 1996 to Mr. Witt again explaining that he would take the $20,000 if in fact the City would construct the retaining wall. Subsequent to that letter, the City had obtained an estimate from a local company that it would cost approximately $19,000 to construct the retaining wall. On April 23, 1996, the City presented this to City Council and the City Council declined to award any monies to Mr. Jones. Almost immediately thereafter, the contractor, M.A. Vinson, received a letter from Don Jones attorney requesting $75,000. By reading that April 29, 1996 letter it appears to me that Mr. Jones was requesting total compensation, including the wall. Once we received information that a law suit was pending, Mr. Witt responded to Don Jones that this had been turned over to our attorneys. Don Jones then contacted the City on May 10, 1996 stating that he had no intention of suing the City but that he was expecting the City to construct the retaining wall. This was somewhat confusing because the claim from their attorney to M.A. Vinson talked about damage to the wall and that they needed compensation to handle any damages to the property. This was turned over to TML and TML responded back to the Jones that the City had no legal liability for any damages on the property. Once we received information from TML, a punch list was provided to Mr. Vinson stating the items to be completed prior to acceptance by the City. One of those items was the retaining wall since that was part of our original contract and there had been no settlement with Mr. Jones. This brings us to the meat of the matter which was a settlement between Mr. Jones and M.A. Vinson's Insurance Company, CNA, on August 1, 1996. The release appears to be a standard release of all claims and it states that Don Jones is releasing all claims against all persons, firms or corporations for any damages known or unknown, personal injuries and property damage resulting from the accident that occurred on or about May 8, 1995 (actually, the damage occurred on May 5, 1996). Once I received that information, I began contacting the Insurance Company to get a better understanding of why this was not an itemized release and what did the release actually cover. After several telephone calls, a letter was sent to the Insurance Company on August 16, 1996 requesting information. The information was received on September 16, 1996. The information contains an estimate of damages to the property by Showplace Custom Homes, which again talks about swimming pools, retaining walls, fences, houses and foundations and gives a total value for repairing those items. There is also a letter from an appraiser about the damages sustained to the property. Apparently, there was a July 15, 1996 letter from Don Jones' attorney to the Insurance Company referencing items which indicate that the total cost of repair was approximately $211,000 and then on top of that there was a $50,000 loss in market value. It is interesting to note that the $211,000 again includes replacement of the retaining wall. Even after the itemized amount, the demand letter states that they will settle this claim in the amount of $75,000. As can be seen the actual claim was settled in the amount of $67,500 on August 1, 1996. In trying to put the pieces of the puzzle together I need an opinion on the following: Did the settlement agreement between CNA, the insurance company for M.A. Vinson, and Don Jones cover all damages to the property specifically the retaining wall that fell on May 5, 1995 and any damages to irrigation systems, landscaping, pools and/or house ? To me it appears that a claim was submitted that included all of those items and that a settlement was reached shortly thereafter which talks about total compensation for any damage to the property and that was signed by the Jones. It is my understanding that Mr. Jones has been in contact with the City Manager's office inquiring as to when the City will be back to complete the project, including the retaining wall. So as can be seen, I need some type of legal opinion on whether or not this release of claim released the City and the contractor from any further obligation in regards to construction of retaining walls. And if so, can the City require Mr. Jones to construct the retaining wall adjacent to his pool. More than likely we will need to sit down and discuss this but I do need some direction on how to proceed at this time. The City still has an open contract with M.A. Vinson with retainage, plus we are tying up some of Mr. Vinsons' bonding capacity by not finaling out the project. Any attention that can be given to this issue as soon as possible will be greatly appreciated. If you have any questions I will be happy to discuss them with you at your convenience. 0y-16-96 A10:13 II,~ CNA Dallas Branch Cynthia Fuller P.O. Box 819006 C/aims Specialist Dallas, Texas 75381-9006 (214) 620-3763 1-800-262-1113 Attn: Kenneth M. Griffin, P.E. September 11, 1996 Assistant City Manager City of Coppell P © Box 478 Coppell, Texas 75019 Re: Claim No: 64-589617 C6 Insured: M.A. Vinson Claimant: Donald c. Jones Date of Loss: 050895 Dear Mr Griffin: Please accept my apology for not sending the information sooner. I hope the enclosed documents will satisfy your request. Please call if you have any questions. Sincerely, Claims Specialist CNA For An the CommitmentsYou M~ke' Transcontinental Technical Services, Inc. Transcontinental Technical Services, Inc. For Al! the Commitmen(s ¥oe Make' RELEASE OF ALL CLAIMS FOR AND IN CONSIDERATION of the payment to me/us at this time of the sum of ~ the receipt of which is hereby acknowledged, I/we, being of lawful age do hereby release, acquit and forever discharge /r'~ ~~ ~ ~/ _.~ and all other persons, firms and corporations who might be liable of and from any and all actions, causes of action, claims, demands, damages, costs, loss of services, expenses and compensation, on account of, or in any way growing out of, any and all known and unknown personal injuries and property damage resulting or to result from accident that occurred on or about the ~J'~ dayof /'~ 19 ~___ , at or near I/we hereby declare and represent that the injuries sustained are permanent and progressive and that recovery therefrom is uncertain and indefinite, and in making this release and agreement it is understood and agreed that I/we rely wholly upon my/our own judgment, belief and knowledge of the nature, extent and duration of said injuries, and that I/we have not been influenced to any extent whatever in making this release by any representations or statements regarding said injuries, or regarding any other matters, made by the persons, firms or corporations who are hereby released, or by any person or persons representing him or them, or by any physician or surgeon by him or them employed. It is further understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that the payment is n._ot to be construed as an admission of liability on the part of //~)f~ "-/"//~*,....~-., ~7 ~c~_~...,~.J. , by whom liability is expressly denied. I/we further agree that this release shall not be pleaded by me/us as a bar to any claim or suit. This release contains the ENTIRE AGREEMENT between the parties hereto, and the terms of this release are contractual and not a mere recital. I/we further state that I/we have carefully read the foregoing release and know the contents thereof, and I/we sign the same as my/our own free act. WITNESS hand and seal this pr e ce of . CAUTION! READ BEFORE SIGNING ) ) (SEAL) ) q_ EAL) CG-3 t 156-D GRIFFITH & NIXON -.-n ',. ' A P~ofessional Corporation Tl:t ~PFIONE: ONE LINCOLN CF. NTI~ ~ ~ ~ ~3A~$INtlI~: (214) ~86-8985 5400.,~] ,FII.r~WAY, Sg[I'~ 1160 "" (214) 986-8985 D, aL[.~, T~J~,S 75240 July 15, 1996 VIA FACSIMILE 214,620-5383 Ms. Cynthia Fuller CNA Insurance Company ~- ' P.O. Box 819006 Dallas, Texas 75381-9006 - Re; Claim No, 64589617DI Clients: Don and Katherine Jones Property: 632 Bethel School Road, Coppell Texas Dear Ms. Fuller: .... ... During our last,telephone conversation,, you indicated'tho"heed {*0;i.nvestigate'the .actual, dOl!~.r;~.mounts, associated with. the damages caused.'by-you ~:-ins'~red, C0nStr~Ctlo6 ".C'0i~,.Inc to the 'p~°perty, of.my'clientS, Dori and 'Ka_t~heri~e ~J6n~.'i .'i~t.i~ 'niy understanding .that.your appraiser, Robert Fuller'with' ProPerty Damage Apprmsers has inspected the property again, I hope that you have had an opportunity to receive and review his damage, appraisal As we discussed, I have obtained and enclosed herein documentation which supports the Jones' damages, First, I have enclosed a proposal from Showplace Custom Homes to repair the property. As you will notice, the proposal is itemized and reflects a total cost of repair in the amount of $211,200.00. In addition, I have enclosed a letter from Prudential Real Estate reflecting the loss in market value of the Jones' property as a result of the clarnages. It is important to note that this loss in market value contemplates a full and complete repair of the property. Obviously, without a complete repair the loss in market value would be much greater. The Jones' total damage, therefore, appears to be $261,200,00. I feel compelled to remind you, however, that these damages could escalate enormously. In light of the recent rains there will be further erosion leading to greater injuries to the Jones' property. As t h'ave'pre~i0usly stressed to you, my client is anxious to resolve'this;matterso that they maY secure.their property,. As such, please consider, th'is letter to' .be 'a. r~enewed demand .i.n.~t'hel amoum, of ·.$75,000,00. -.Considering the .fact-thai'this demand, has ;been, on the table 'for 'a considerable period of ·time, we must receive' an immediate response. c:~doe~J~ nes~fuJler2-1t t~kl ~'d 86E'0W ~WD W~ZE:6 966I'9I'd3S Ms. Cynthia Fuller July 15, 1996 Page 2 In fact, this offer of settlement shall remain open through 5:00 p,m,, Friday, July 19, 1996, In order to accept this offer, I must have a check in my office by Friday, July 19, 1996 payable jointly to Don and Katherine Jones and Griffith & Nixon, P.C. If this offer is not accepted by the aforementioned deadline, it shall be and is hereby automatically withdrawn. Thereafter, we shall proceed with litigation seeking to recover the full amount of damages incurred by my client. Your immediate attention to this matter shall be greatly appreciated. Slncerely, Scott Grlffith(/'(/ SG\kl Enclosures cc: Don and Katherine Jones c;~doe~Jon~\fukr2.Li~l E'd 86E'OW ~HD W~8E:6 966~'9~'d3S =o~u~ o.k. tX ~oe~ ACCEPTANCE I Don Jone~ ~10 Oc~fitb & W~xon ~ --~6,8985 -'-~uM! ?-13-9~ ~ ' -- X. EX~YATXO~I Kemove id[Rains pooX, Opt, vldln8 poo2; eoopla~e ~x~o~o~ of pool und ~r~. ~e~ OUlEat ~11 wXIX house and pool.ritZ remai~ p~ovided they utiF t~Ttet, Zn Approx. $11,675.O0 : ~t. R~TAIHI~0-WA~L: ~11~ be Afl enalao~red rero~ont renovlt ton, SXOI,iSO.O0 creek in the ~oundatton frqm front tO bi~k, Ut hive IOm~ Ibo~ ~opogmd. 8sod loc ~ Days only,~ (Avlult ~t, XSJ6) :, ..... ~ J p'd 86£'0W ~WD W~8E:6 D66~'9~'dBS w. Dc~ C. Jonee 6~-E Bethel 5ohoo~ Road Coppoll. TX Re: S32 E 8eU~el School Road, Copp=ll, T~cas Deer 001, I enjoy~cl meeting wi~ you recently eno inspecting your home and property ~ U~e a~ve referenced address. I agree w~th you that you have sultllned r, an$1dmable ~ar~aga lo your property. While I understand you Inten~l to repair your property, even with full repa~s, this type of damage mu~! be o'isclosed to any potential purchaser of your properly. Texel law requires a disclosure a! material injury tO pl'Opltt¥ au~ Il you have experienced, to any patenfial purcl~se~, even ii~ the ploperty has baas fully eepaimd.. As ~you k~ow, I am very familiar Wil~ ~e fell ~ltete market Iff and around Coppell, damages you have suffered adversely affect tM eMI<et value of your property. Even with full Mpair, it is my opinlorl trte loss in market value to your p~perly would be in fie neigt~orhood If you ~eed any further Jnfofl~atlon, please do no~ hesitate to Gift me. ~inM~el¥, Charle~ Wileon, Realtor ~' d 86£' OW UND WUS£: 6 966~ ' 9~ ' dBS