OPINION ISSUED JANUARY 23, 1998
REBECCA JONES AND
DAVID JONES
VS.
DIVISION OF NATURAL RESOURCES
(CC-97-328)
Claimant represents self.
Daynus Jividen, Senior Assistant Attorney General, for the
respondent.
PER CURIAM:
The claimants brought this action for damage to personal
property resulting from flooding at the Watoga State Park in
Pocahontas County. The Court is of the opinion to make an award as
stated more fully below.
Claimant David Jones was, at all relevant time periods,
the superintendent of Watoga State Park. The parties stipulated
that as condition of employment, Mr. Jones was required to live at
the park in the superintendent's residence. On or about June 2,
1997, Pocahontas County experienced an extremely heavy rainfall,
estimated to be in the neighborhood of up to 10 inches of rain.
The evidence adduced at hearing was that a large amount of water
flowed downhill from nearby hillsides and flooded the basement of
the superintendent's residence.
The testimony established that the water level in the
basement was between five and six feet deep. The claimant
submitted into evidence photographs showing that the basement and
personal property therein sustained heavy damage. The items
destroyed included a clothes washer and dryer, a dehumidifier, a
vacuum cleaner and a Christmas tree and decorations. The
claimant's renter's insurance did not cover flood damage. The
respondent's insurer denied the claim as well, on the basis that
the damage was caused by an act of nature.
The respondent moved for summary judgment on the basis
that there was insufficient evidence of negligent conduct on the
part of the respondent and that the sole cause of this incident was
an Act of God. Adkins vs. City of Hinton, 142 S.E.2d 889 (W.Va.
1965); American Coal Co. vs. De Wese, 30 F. 2d 349 (4th Cir. 1929);
Bennett vs. State Road Commission, 5 Ct. Cl. 153 (1950). The
claimant conceded that the flood was an uncontrollable act of
nature and that the respondent was not at fault. However, it was
the claimants' position that they should be compensated for loss of
personal property due to the fact that they were required to live
on the premises.
The Court recognizes that the respondent may not be
legally obligated to compensate the claimants under existing law.
However, the Court is of the opinion that because the claimants
were required to live at the park as a condition of employment, the
respondent has a moral obligation, in equity and good conscience,
to compensate the claimants for loss of their property. Hammack
vs. Division of Highways, (CC-93-176a), unpublished OPINION ISSUED
December 17, 1993. Therefore the Motion for Summary Judgment is
denied.
Claimants have based their request for an award upon full
replacement costs for their personalty in the total amount of
approximately $3,800.00. The Court has examined and evaluated the
record independently and makes an award in the amount of $1,992.80
which the Court considers to be fair and reasonable compensation
for claimants' loss.
Therefore, in view of the foregoing, the Court makes an
award in the amount of $1,992.80.
Award of $1,992.80.
Cases Submitted and Determined
In the Court of Claims in the
State of West Virginia
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