Daily Southtown (Sunday)

Ruling threatens well water payout

Says insurance group under no obligation to cover Crestwood costs

- By Mike Nolan

A recent Illinois Appellate Court ruling throws into doubt an $18.3 million payout to current and former Crestwood residents who alleged the village’s longtime use of well water contaminat­ed with a known carcinogen caused them health issues.

The village agreed to pay $15 million to settle dozens of lawsuits and the current litigation, which an attorney for residents is appealing to the state supreme court, targets Crestwood’s engineerin­g firm and a settlement agreed to in May 2015.

That settlement hinged on Burke Engineerin­g Corp. in Orland Park being reimbursed by its insurer, General Casualty. A state appeals court ruled the insurance company had no obligation to cover the cost, according to the 2-1 decision.

Lawsuits were filed after the village’s use of the well came to light in 2009. The well water was tainted with chemicals including vinyl chloride, a known carcinogen, and it was being mixed with Lake Michiganwa­ter.

Investigat­ors raided Crestwood VillageHal­l in late April 2009 and carried off boxes of documents, 10 days after a Chicago Tribune investigat­ion found that village officials knowingly supplied residents with the contaminat­ed water

Village officials told residents and the Illinois Environmen­tal Protection Agency that it was using only Lake Michigan water after 1985, when the contaminat­ed well was discovered, but

regulators later learned that Crestwood continued to use thewell for as much as 20% of its water supply from 1985 to 2007.

Two village officialsw­ere convicted in federal court in Chicago for their roles in covering up the longtime practice of tapping thewell.

Village officials steadfastl­y denied that residents’ health was in jeopardy, althoughma­nyof thelawsuit­s blamed the use of the well water for illnesses including kidney problems, tumors, different types of cancer and immune system disorders.

After the use of the well was revealed, the IEPA said the public’s health was never at risk, but the U.S. EPA has said there is no such thing as a safe exposure level to vinyl chloride, a chemical used in dry cleaning.

Some 300 current and former residents sued Burke Engineerin­g Corp. in May 2013, alleging the firm was negligent in failing to notify residents that the well water being used was contaminat­ed.

The firm provided monitoring and audits of the village’s water supply from 1980 until2006, andBurke’s rolecameto light during the discovery phase of the ini

tial lawsuits filed against the village in 2009, according to Jay Paul Deratany, a Chicago attorney who represente­d some 280 plaintiffs in those original lawsuits as well as the complaint against Burke Engineerin­g Corp.

In July 2014, a Cook County Circuit Court judge dismissed the negligence claim against Burke Engineerin­g Corp., finding General Casualty was not re

quired to indemnify Burke for the settlement amount and did not act in bad faith in denying coverage, prompting the appeal from residents.

In the meantime, attorneys began talks aimed at settling the matter out of court. The lawsuits had sought damages against Burke Engineerin­g Corp. of $350 million.

Deratany’s firm on Oct. 19 asked the state supreme court to consider an appeal of the Sept. 14 appellate decision. He said that if left to stand, the appeals court’s decision could have significan­t repercussi­ons as far as insurance coverage for businesses.

Deratany said that while $100,000 had been earmarked fromthe settlement of the original Crestwood cases to pay for additional litigation, that money has been exhausted and he is continuing the litigation on his own with hopes of a reversal from the Illinois Supreme Court.

He said he sees a possible willingnes­s on the part of the high court because there was a split decision at the appellate level, with

Judge Carl Walker dissenting.

In his dissent, Walker suggested there was sufficient evidence regarding the insurance company’s responsibi­lity that the case be sent back to the circuit court for more proceeding­s.

The appeals court, in affirming the circuit court ruling, wrote that after so many years of litigation on the matter “we realize that this is a disappoint­ing result for the residents of Crestwood.”

During the trial on the residents’ complaints against Burke Engineerin­g Corp., evidence presented showed that Crestwood officials, in tapping the well, pumped“millions of gallons of tainted drinking water to residents.”

General Casualty filed its owncounter action, arguing it wasn’t obligated to cover the settlement costs because of howthe policywas written.

It contended that, based on the negligence claim, it wasn’t obligated to pay out in instances where conduct by the insured resulted in “injury or damage that was expected or intended.”

In the wake of the original lawsuits, Crestwood has begun to address a root cause in its water distributi­on system that contribute­d to the use of thewell.

The $25 million project will replace aged water pipes in the village’s Playfield subdivisio­n, and Crestwood in late 2018 received a $1.3 million grant from the U.S. Army Corps of Engineers for part of the work. The village is also getting a low-interest loan from the state.

According to evidence and testimony in the court cases, Crestwood officials were aware of substantia­l leaks in the village’s water distributi­on system but failed to make needed, and costly, repairs. Using the cheaper well water saved the village money and reduced the amount of the more expensive lake water it had to buy, evidence showed.

 ?? DAVID PIERINI/CHICAGO TRIBUNE 2009 ?? EPA agents carry boxes of documents out of Crestwood Village Hall related to the mixing of tainted well water with Lake Michigan water.
DAVID PIERINI/CHICAGO TRIBUNE 2009 EPA agents carry boxes of documents out of Crestwood Village Hall related to the mixing of tainted well water with Lake Michigan water.
 ?? SCOTT STRAZZANTE/CHICAGO TRIBUNE ?? An $18.3 million payout in a lawsuit connected to Crestwood’s use of tainted well water is now in doubt.
SCOTT STRAZZANTE/CHICAGO TRIBUNE An $18.3 million payout in a lawsuit connected to Crestwood’s use of tainted well water is now in doubt.

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