Who will pay? Contractor demands money in Belleville 'hole' case

News-DemocratApril 30, 2013 

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— The Belleville excavating business that tore down two buildings at the site of a downtown fire intervened in Tuesday's bench trial to determine who is responsible for the cost of demolition and cleanup.

St. Clair County Circuit Judge Vincent Lopinot allowed Hank's Excavating and Landscaping to intervene on the case between the city of Belleville and Ronnie Phillips, who owns 205 E. Main St.

Lopinot ruled in December that Belleville Mayor Mark Eckert had the right to have Hank's tear down Phillips building, and Chester Nance's building at 201 E. Main St., for safety reasons within hours of May 26, 2010 fire.

Eckert could do so without notice or court order because "the building was in a dangerous fire condition," Lopinot said.

But Lopinot did not say in December which party had to pay for the demolition or clean up the site, now partly covered with exposed asbestos.

Tuesday, Lopinot heard testimony from Phillips; Eckert; Paul Bauman, a building inspector for the city of Belleville; Belleville City Engineer Tim Gregowicz; and Belleville Fire Chief Scott E. Lanxon.

After about five hours of questioning and closing arguments, Lopinot took the case under advisement. The judge asked all parties to file proposed orders by May 10 and said he would issue a ruling after that on which party has to clean up the site.

Laura Schrick, the attorney representing Hank's, said Hank's demolished the buildings as an emergency service per an oral contract with the city. The company believes the city is responsible for paying the unpaid portion of the bill, which is about $49,001 if including interest.

"Nothing precludes the city from paying Hank's," Schrick said.

But attorney Julie Bruch, who represents the city, said Phillips, as the property owner, is responsible for the payments though the city may have hired Hank's. The city also isn't responsible for asbestos in a non-city owned building.

Bruch used the scene of a car crash as an example. If the Police Department uses a towing service because the car was blocking Main Street, the car's owner and not the city would be responsible for paying the tow company.

Bruch said Phillips is holding on to money he received from his insurance company, State Farm, to pay for the demolition.

Eckert testified that insurance adjusters from two companies, one for Nance and one for Phillips, were at the scene of the fire and indicated to city officials they understood their financial responsibility.

Then, last year, State Farm wrote a $47,583 check, issued to both Phillips and the city, to pay for part of Hank's demolition fee, which totaled $88,578.

Hank's has not been paid because Phillips has not endorsed the check.

Phillip's attorney, Penni Livingston said the city is not entitled to the money, and Phillips' former attorney erred when he told the city Phillips would share the check.

"State Farm agreed to that. I didn't agree to that," Phillips said when Bruch brought up correspondence from Phillips' previous attorney that indicated Phillips would pay two-thirds of the demolition costs and Nance would pay one-third.

Phillips said he did not authorize his old attorney to settle anything with the city.

Livingston asked Lopinot to dismiss the case because Phillips did not breach a contract with the city and should not be fined for violating city nuisance codes.

The city is asking that Phillips be ordered to pay as much as $972,000 in fines for leaving exposed asbestos at the demolition site. The fine amounts to $50 to $1,000 per day for the nearly three years since the buildings were ordered demolished by the mayor.

Livingston said the city is responsible for paying for the asbestos cleanup because the asbestos would not be an issue at all if the city had not torn down the buildings.

Phillips never asked for his building to be torn down in the first place, Livingston said.

The asbestos could all be from Nance's property and Phillips cannot remove the weeds to address the nuisance at the site until the asbestos is removed, Livingston said.

"There is asbestos on the property. But whose asbestos? I don't know," Phillips said Tuesday.

Nance is not named in the city's counterclaim.

Aside from testimony explicitly about cleanup payments, Lopinot allowed attorneys to slightly veer into territory he already ruled on -- whether the city legally tore down the buildings. On several occasions, Lopinot stopped Livingston to say "this has been ruled on."

Lopinot heard accounts from city officials about responding to the fire and how they decided the building was unsafe and had to be torn down.

Gregowicz said he was called to the scene to assess a wall on the Jackson Street side that was clearly unstable.

Lanxon said he could see beams connecting the two buildings bending.

"A slight wind probably would have taken that down," Bauman said. Now, the hole left after demolition is about 8 feet deep and a danger to the public.

Eckert said that when that wall went down, he saw the front sides of both buildings wobble, and bricks and other debris were also falling from the buildings. He believed that if the buildings fell down on their own, instead of a controlled fall, then surrounding buildings might be damaged.

Eckert said the issue of asbestos did not come up among city officials' discussions that day.

Livingston argued that there were no public safety concerns after city officials removed the one unstable wall and did not have reason to knock down Phillips building.

She also reiterated the city did not follow state law in notifying property owners and handling the asbestos.

Contact reporter Jacqueline Lee at jlee@bnd.com or 239-2655. Follow her on Twitter at twitter.com/BNDBelleville.

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