BUCKHANNON — The city of Buckhannon has reached an understanding with a contractor it sued after the contractor allegedly severed municipal water lines on two separate occasions in 2016, city attorney Tom O’Neill said Thursday.
O’Neill filed a civil complaint in Upshur County Magistrate Court on May 31 against Brian T. Myers, dba Compact Backhoe and Construction Services, based in Buckhannon. The suit claims that on two separate occasions, Myers’ company cut a city water line while completing an excavation job near 52 Valley View Dr. The first occasion occurred on March 9, 2016 and allegedly cost the city $2,498.64 in repairs and restoration of water service to customers, according to documents attached to the complaint. O’Neill says that Myers’ company did not notify the city of his intent to dig prior to doing so, and when the city attempted to invoice Compact Backhoe and Construction Services for the damages, Myers “refused to acknowledge his liability despite repeated attempts … to elicit payment without resorting to the courts.”
Then, on March 13, 2016, Compact Backhoe and Construction Services “again engaged in an excavation in the vicinity of 52 Valley View Dr.” and “negligently severed the two-inch main water line owned and operated by the City of Buckhannon Water Department.” O’Neill claims the break in the line “caused a loss of water to some of (the city’s) customers in the area and again required an immediate repair by the City of Buckhannon Water Department.” Fixing the break and restoring water service cost the city $1,661.65, according to documents provided in the complaint.
Arguing that the breaks would have been “easily preventable” if Myers had called Miss Utility, known as the one-call system, by dialing 8-1-1, or visiting www.wv811.com, O’Neill asked that the city be compensated for the total cost of the damages, which totals $4,159.29 plus “prejudgment interest.” The complaint demands a trial by jury.
On Thursday, O’Neill said the city and Myers had “reached an understanding” but that the suit will remain pending “until we’ve had a final resolution of the situation.
“If the city is compensated, then there are no remaining issues to litigate,” O’Neill said.
In a telephone interview Saturday, Myers said he had turned the charges over to his insurance company.
“It’s been turned over so it will be paid,” Myers said. Myers expressed frustration with public works director Jerry Arnold, saying he had visited city hall three times to try to resolve the matter with Arnold, but that Myers “could never get him (Arnold) to respond back or call me back and I told the city attorney (O’Neill) that.” Myers also said he wasn’t operating the equipment that allegedly severed the lines twice in March 2016 but claimed he had called the 8-1-1 number prior to excavation.
Myers has not filed a formal answer to the city’s complaint because he has yet to be served with it, despite the city having sent it by certified mail. Myers is obviously aware of the complaint and turned the bill over to his insurance company, he said.
O’Neill said, “He apparently hasn’t been served with the complaint yet; the Court told me that the certified mail had been returned. So, if the agreement we had reached falls through, the suit would still be active pending completion of service of process – which we could complete through other means than certified mail.”
In addition to the March 2016 breaks, at its July 6 city council meeting, O’Neill informed council that Compact Backhoe and Construction Services had, for a third time, severed a water line on Sandy Avenue. Water plant superintendent Kelly Arnold said the incident occurred on June 27 and that the city had to implement a boil water advisory because the water line cut was located near a sewer line. That incident is not included in the May 31 complaint; however, O’Neill said he expects that the city will be compensated for the damages.
“Repairs have been made, service has been restored, and the operator of the machinery has agreed to compensate the city for the cost of repairs,” O’Neill said of the third instance.
Myers denied operating the equipment during the June 27, 2017 break.
“In June 2017, I rented a piece of equipment to an old buddy, who said he had called Miss Utility some time ago and thought it was safe,” Myers said. “He didn’t think anything was there.” Myers confirmed that the person he rented the equipment to had agreed to pay for the damages.