Floodplain insurance is issue in aftermath of Lake Delton disaster

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Most people have seen video footage of houses breaking in half and floating away with the rest of the water that used to be Lake Delton.

Now attorneys in the area are evaluating whether or not home, condo and resort owners can hold anyone liable for the catastrophe.

John R. Orton of Curran, Hollenbeck & Orton, S.C., in Mauston said the recent revelation that the village declined to participate in a floodplain insurance program offered by the Federal Emergency Management Agency (FEMA) for shoreline residents could provide ammunition for some potentially complex litigation.

“Let’s say the rumor mill in Lake Delton is working pretty hard on the issue of why the village failed to participate with FEMA as they could have,” said Orton, who only recently found out about the village’s decision from a colleague.

Who Is to Blame?

Orton and other local attorneys expected that most structures surrounding the 267-acre lake did not have flood insurance and initially suspected owners would have a hard time assessing liability.

Lake Delton Village Attorney Richard Cross said local engineers determined the 100-year flood level at 833.9 feet and homes on the shoreline were two feet above that level, so they were out of the flood plain.

He said that the 2001 floodplain map from FEMA, which determined properties along the lake were in the floodplain, were “inaccurate” and “somewhat confusing” to the point that local engineers could not determine where the floodplain was and that is the reason the village board did not adopt it seven years ago.

But Jesse Leichsenring of Helland Law Offices in Wisconsin Dells suggested that had the board adopted the FEMA map in 2001, things might be different now.

“Assume for a moment that the redrawn floodplain maps had been approved,” said Leichsenring. “Then the village would not have been dropped from the plan and FEMA may have covered a lot of the losses and the village might be eligible for federal relief for that portion of the disaster.”

“Now they may not get money from the same place or for the same purposes,” continued Leichsenring.

Three lakefront homes were swept away by the water, and two other homes were destroyed when a portion of land between the man-made lake and the Wisconsin River gave way.

Orton suggested that one of the potential questions could be whether the village’s decision not to enroll in the FEMA program was simply a judgment call or an obligation.

“A government agency typically has full immunity if it’s a discretionary decision,” said Orton. “But if it was a ministerial duty, and something so obvious that it should have been done, that is the type of breach you can sue the government for.”

If the village is held liable, then the question is how much are they responsible for?

Orton said that state statute caps personal injury and property damage claims at $50,000 for the kinds of cases which could potentially come against the government.

“The reasoning behind the statute is to limit a municipality from an extensive list of claims, so I don’t know if there is going to be a way around that cap,” said Orton.

Cross said ultimately he does not expect many, if any legal issues to be brought against the village and that their primary focus is on restoring the lake.

“I doubt it, but you never know, because anyone can bring a claim for anything,” said Cross, who added that he has not fielded any legal complaints at this point.

Other Issues

Beyond the possible legal questions concerning the village, attorney William M. Pemberton of Pemberton Law Offices in Lake Delton, said one issue that may be looked at is whether or not the homes which eroded into the lake were properly anchored.

“I have no idea what the building restrictions are, but you saw some houses roll away, and lot of this area is sand,” said Pemberton. “I don’t know if there was any bracing into the ground or if there is any liability on the part of the builder.”

At least 20 resorts and condos line the shores of the lake as well and owners may encounter some unexpected problems. Orton suggested that some resort owners may be monetarily responsible for a portion of the lake’s restoration, depending on the amount of government aide available.

“As the government steps in to restore the lake, it may impose special assessments on those people who benefit from reconstruction of the lake,” said Orton. “Those types of things cause people to come in and see a lawyer about whether the assessments are fair.”

The Associated Press reports that resorts were experiencing customers canceling their reservations.

Leichsenring also noted that condo bylaws may not cover catastrophic events and there could be legal issues regarding how much renovation an association is responsible for.

“Associations may have provisions for replacing common area carpet, not for redoing everything,” said Leichsenring. “But who is going to want to buy a condo near a lake with no water?”

Leichsenring said the only person to contact the firm so far wanted guidance on whether or not he could retrieve his boat from the muddy remains of the lake.

“Obviously with 95 percent of the lake drained, there are going to be a safety issues,” said Leichsenring. “The village board has 15 million things on their mind, least of which is getting a 15-foot pontoon boat out of two feet of mud.”

Because of the unusual and unexpected questions that will most certainly be posed by victims, Leichsenring expects to do more work as a “facilitator” than as an attorney in the coming weeks.

Portions of this story came from the Associated Press