Driver in the hole for $674 — thanks to a pothole’s winter punch
Matthew Kelly, one of 500-plus pothole claimants this year, threatens to fight city in small claims court
MATTHEW KELLY is holding out to see if city council will cough up the cost of his bent rim — the result of driving over a pothole this past winter.
“If I get denied, I go to small claims court.”
At first, it was about money, he says. Now it boils down to principle.
Kelly is one of more than 500 drivers who have filed claims for pothole-related damage in what has turned out to be a banner year for rutted roads in Hamilton.
The 37-year-old says he was driving his 2014 Hyundai Elantra early one January morning when he hit a crater on Upper Gage Avenue near Mohawk Road.
He had his car towed to a garage, where the mechanic charged him $674 to repair a bent rim.
In mid-July, the city’s legal department told him the municipality would cover half of the bill.
“I said, ‘Thanks, but no thanks.’” One of his options was to make his case before the city’s audit, finance and administration committee.
Council’s offer to cover 50 per cent was ‘very generous, but who’s going to pay the other 50 per cent of the claim?’ MATTHEW KELLY
So on Wednesday, with January’s frost a distant memory, Kelly — wearing short sleeves and shorts — showed up at city hall armed with photos of the warped wheel and that pothole to ask councillors for a reimbursement.
The offer to cover 50 per cent was “very generous,” he told councillors.
“But who’s going to pay the other 50 per cent of the claim?”
Risk manager John McLennan told the committee the winter’s manic freeze-and-thaw cycle contributed to more than 500 pothole-related claims. Over the past decade or so, a normal year would see between 100 and 150.
Generally, staff examine road maintenance records and compare them to standards in the Municipal Act to decide if the city was in any way negligent. McLennan said the city rejects 90 per cent of claims.
“In certain instances, we will find that our records will not pass muster in small claims court,” he said. “If we make an offer of 50 per cent, it is because we feel we may have some exposure there.”
City solicitor Nicole Auty said that doesn’t necessarily mean the municipality assumes responsibility for the mishap. It’s a question of whether the city can “get to the finish line and successfully defend the claim.”
McLennan said there’s an expectation that drivers must shoulder some responsibility in trying to avoid potholes or other obstacles such as a piece of lumber.
Kelly said he didn’t see the curbside pothole before he hit it.
And he also said a resident who lives on that particular stretch of Gage told him the pothole regularly rattled cars there.
While responsibility plays into the argument, so do tax dollars.
McLennan said the cost would be substantial if the city reimbursed this season’s roughly 500 claims, noting the average is about $500 to $750 each.
Such a gesture would also open the floodgates, he suggested. “You’d pretty much be paying claims any time a person has a rim or tire problem.”
Coun. Lloyd Ferguson, who had “mixed feelings” about Kelly’s situation, said he supported staff’s offer of 50 per cent. “The city wasn’t negligent. It was the darn weather that caused it.”
Coun. Aidan Johnson said the pothole pain is a symptom of changing weather patterns.
Councillors opted to back staff on the city’s offer to cover half of Kelly’s bill.
After his appeal, Kelly said he understands city officials have to scrutinize each case but called the claims process “ridiculous.”
“So there were more claims last year ... That’s not my problem. That’s not everybody else’s problem. You pay out more money this year.”
On Friday, city council must give final approval to the audit, finance and administration committee’s report.