Defendants say flood was ‘act of God’ |

Defendants say flood was ‘act of God’

John ColsonAspen, CO Colorado

PITKIN COUNTY A resident of W/J Ranch is hoping a judge will agree that when burst pipes flooded her home in 2006 it was not an “act of God,” as one of her adversaries in an upcoming court fight claimed.Marilyn Foss, a mortgage broker who lives in the W/J Ranch Lower Bullwinkle Circle, one of Pitkin County’s affordable housing neighborhoods, is hoping a judge will order a local plumbing contractor and others to compensate her for what she claims was negligence and poor workmanship that let a veritable river of water undermine her home and cause considerable resultant damage from seepage and mold.Foss is suing ABCD Soderberg, Aspen Earthmoving and the Lowe W/J partnership for an undetermined amount in damages, while the companies maintain that the damages were the result of her own negligence.According to her lawsuit, the matter began when Lowe, the corporate owner and developer of W/J Ranch, started work in the summer of 2004 to upgrade the water system of the neighborhood on the lower bench of the ranch, just upvalley from Woody Creek on McLain Flats Road.The work, the lawsuit states, included installation of a new water tank for the neighborhood and new water lines to connect the new tank to the homes, which are mostly of “panabode” or milled-log construction with a crawl space under the floors. Aspen Earthmoving was the general contractor, and Soderberg was the subcontractor hired in the summer of 2004, to connect the new water lines to the homes in the neighborhood.But Soderberg, Foss claims, installed “improper and inadequate” components that were “unable to handle the water system … and the water pressures associated therewith.”The result, Foss claims in her lawsuit, was that on Feb. 1, 2006, the plumbing failed and flooded her crawl space, which she used for storage. The flood burst a small door and sent her belongings, and perhaps as much as 165,000 gallons of water, coursing out into her yard and the yards of her neighbors. The lawsuit maintains that the 55,000-gallon water tank drained and refilled itself not just once, but at least twice and possibly three times as it emptied into Foss’ home.The flood soaked the foundation, floors and exterior logs of the home, Foss alleges, which later led to the growth of harmful mold that she believes has affected her health.”What’s got me concerned is what’s happening with the structural logs and the mold,” she said this week, citing photographs that show the lower logs of her home are rotting in place.Foss says Soderberg made a halfhearted attempt to fix the water soaking up through the foundation and into the logs, using what she said were inadequate fans to try to dry the place out. That, she said, was when she had to hire a professional company to come in and dry the place at a cost of $20,000. She said she has spent a total of $60,000 so far, has obtained an estimate of more than $220,000 to do all necessary repairs, and concluded that “I’m running out of money.”Soderberg, according to an employee who would identify herself only as “Dawn,” believes the responsibility for the flood and later problems lies with Aspen Earthmoving.”We came out when it flooded and took care of the problem even though it didn’t have anything to do with something we installed,” she said, referring to the attempt to dry out the crawl space. “Somebody else installed the actual plumbing.”Dawn maintained that the problems were all the result of the water system’s design instead of by her employer’s performance on the job.Aspen Earthmoving did not respond to calls for comment about the suit, and the file containing the lawsuit documentation was not available from the Pitkin County Court Clerk’s Office for review Monday.But according to documents Foss’ attorney, Kenneth Jaynes of Glenwood Springs, sent her, all three defendants deny negligence or that any actions by them or their employees might have contributed to the flood.Both Soderberg and Aspen Earthmoving argue that the damages to Foss’ house were the result of negligence on the part of either Foss herself or an unknown third party, although they offer no further explanation. And Aspen Earthmoving’s court filing maintains: “Plaintiff’s damages were caused by and Act of God.”Lowe, according to documents by Foss provided The Aspen Times, flatly states that Foss “has failed to adequately maintain her Property, leading to her contributory negligence in this matter,” and that Foss “authorized the work on her property, and by doing so, assumed the risk of potential damage to her property.”A representative for the clerk’s office said no action is scheduled in the case until late October, according to a notation in the file.John Colson’s e-mail address is