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It could happen to you: Billings couple takes sewer back-up fight to Montana’s highest court

Posted at 4:55 PM, Dec 29, 2021
and last updated 2021-12-29 18:55:23-05

When Ariane Wittman saw a toilet in the lower level of her Billings Heights home overflowing on June 19, 2019, she couldn’t imagine the cause.

When she found out what it was, she wished she didn’t know.

The first clue was a cigarette butt coming up through the murky water. No one in her house smoked. As the water continued gurgling up, it also started coming up through the drains. She called her husband, Jeremy Taylen, a contractor who called a plumber immediately.

When the plumber arrived, he took one look at the basement, ran to the street, and immediately called the city. The sewer was clogged, and raw sewage from the surrounding neighborhood was backing up into Wittman’s house – any homeowner’s worst nightmare.

Crews from the Public Works Department of the City of Billings arrived quickly with a powerjet truck and removed the grease blockage. Almost immediately, the sewage stopped and the city told her to call a disaster restoration service and gave her the contact information for the city’s insurance carrier.

Nearly everything in the bottom level of the two-level home, including two kids’ bedrooms and everything in them, had to be catalogued, then thrown away. For the flooring, most of the fixtures would have to be removed and the walls taken down to the studs.

The lower level of Ariane Wittman and Jeremy Talen’s house after flooring had been pulled up and walls taken down to the studs.

But the biggest nightmare was when Wittman and Taylen learned that though the backup was not caused by their house and the blockage was in the city’s sewer system, neither the city nor their homeowners’ insurance would cover the $80,000 to $100,000 of clean-up, rebuilding and replacing items in her house.

Her kids didn’t have beds. Wittman had lost her home office and those who were working on the clean-up had to wear protective haz-mat suits just to enter the basement. Before the restoration part of the work was complete, the crew had burned through 140 suits. That has led the couple to sue the City of Billings and its self-insured, cooperative insurance fund that covers many municipalities in the state. The case is currently before the Montana Supreme Court, and the outcome may decide whether cities have to pay up on the rare times a sewer line is blocked from the main, or whether a small number of residents will have to find a way to repair their houses out-of-pocket, or risk losing their properties altogether.

A rare occurrence

In court documents filed in Yellowstone County and at the state Supreme Court, records show it’s rare that sewers back-up. Those documents reveal that in a city with approximately 60,000 residential hook-ups, backups happen on average around 12 times in a year, affecting less than one-quarter of one percent. Many of the backups, as tracked by the city, don’t threaten the entire structure.

Sewer back-ups are most commonly caused by flushing larger objects into the sanitary sewer system or by grease from businesses or restaurants. The City of Billings has one of the most robust maintenance programs in the state, employing high-powered, pressurized water jets and cameras which routinely flush and clear the system. Because of that, the city and its insurance fund has determined that the back-up in Wittman’s home, even though it was the result of a blockage in city’s sewer system, was an unforeseen, unpreventable occurrence and therefore the city will not pay.

Tucker Gannett, a Billings attorney who represents Wittman and Taylen, has taken their case to the Supreme Court, saying that what happened to the couple and their Billings home could happen anywhere, and is the result of a legal concept called “inverse condemnation.”

The legal theory hinges on the facts that if you’re a resident in the City of Billings and most other Montana municipalities, homeowners don’t have the choice whether to hook up to the city’s sewer system. It’s the law, Gannett explained. Furthermore, because the city owns and maintains the sewer system, homeowners cannot buy insurance against such a back-up, or if they can, it’s usually capped at a lower limit, less than $10,000. And because Wittman and Taylen did not have a choice and could not have even insured themselves against the problem, Gannett said the city should be responsible for its sewer system failure, which caused half of their house to be destroyed.

A two-year nightmare

For its part, the city doesn’t dispute the events or the couple’s version of the story, nor does it deny that sewer back-ups can happen to a small fraction of residents. However, it says those are akin to the acts-of-God for which it should not be held responsible, arguing that such a legal decision could open Billings and cities around the state to more claims.

Furthermore, in court documents, attorneys for the city argue that in order for the city to be liable, Wittman and Taylen would have to prove it was negligent in taking care of the sewer system, something unlikely because of its detailed maintenance records.

“(The Montana Supreme Court) did not decide the government was liable for inverse condemnation simply because it build a project that cause property damage,” attorneys for the city said. “Instead, the government was liable because there was evidence in the record to show that the government knew or should have known that constructing the project would damage the plaintiffs’ neighboring property and made a decision to do it anyway.”

The city said it could have not reasonably known or prevented the back-up so it should not be on the hook.

Arianne Wittman stands in her basement which sustained more than $80.000 worth of damage when a clogged sewer main caused a back-up in her house. Though the City of Billings doesn’t deny it happened because of its sewer line, it has refused to pay for the damage and a court case is pending before the Montana Supreme Court challenging it.

For her part, Wittman said even though the lower level has been put back together, she still finds herself checking. Any suspicious smell puts her anxiety on high-alert. Her next-door neighbors had some damage to their basement, but not as much as hers. Had she not been home, her basement would have likely been worse and others in her neighborhood would have likely suffered the same fate. In court filings, the city admits it has no way of tracing where the grease blockage originated.

Putting the home back together has been challenging. Her children didn’t have beds or any clothing – and things acquired over the course of years, had to be thrown away in an instant.

“COVID was horrible because we were all trapped here and I hated it because it was a continually memory of what happened,” Wittman said.

They’ve used credit cards, savings, even relied on their parents to help purchase new furniture and clothes. Wittman rolls her eyes at the sign in her daughter’s room, “Welcome to the Sh**show.”

At first, when the city responded to blockage, she was handed a piece of paper with the city’s insurance contact and was told to get a disaster service called immediately. She felt reassured. But when she found out the city wasn’t going to pay, she had thoughts of losing her home.

“The man told me it was a risk that we take when you hook up to the sewer system,” Wittman said.

That was a risk that wasn’t avoidable – if you’re a property owner in the city limits, a home is required to be on the city sewer system.

“I was just flabbergasted,” Wittman said.

Gannett explained that even though the percentage of times this happens is small when compared to the entire sewer system of Montana’s largest city, it still represents a “real life taking” of property without compensation, something that raises constitutional questions.

“This would tip most middle-class folks into bankruptcy,” Gannett said.