HomeMy WebLinkAboutAuburn Sports & Marine V City of Auburn •
FILED For Record At Request
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. . . DAVIS WRIGHT TREMAINE
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• .• •. . LAW OFFICES
- - • 2600 CENTURY SQUARE ' 1501 FOURTH AvENUE • SEATTLE,WASHINGTON 98101-1688 ,
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(206)622-3150
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(206)(128 7692 •,,A, ii ., ..
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•.. November 20, 1991
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Mr. Andrew G: CoOiey ./,,, ,s •
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Keating, iAlcklin' &,41cOOrliack, p. ..,,
4141 SeafirSt-kfth Avenue P10.6. •:4• i•
44Zr 800 Fifth Avenue .;••'. .::' ....'" .:•1 .,,,'
Seattle, WA 9814 :•'' •;'. :,.'. ...':. .-.*:: .----,,... ,:::::::,;,:.
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s.; ........ Re: Auburn Sports FOlarinev. Cityof Auburn
C\J
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4 cp Dear Mr. Cooley:
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I a) Auburn, Sports & Marine accepts the pity of Auburn's offer
communicated in your letter to me. of November 8, 19.91 oValthree
year extension of Auburn Sports IS'Marine'e u,Se-Of-thepai-king lot
next .to the. cemetery in exchange for afuWrelease and.
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stipulated Yorder of dismissal. Under this extension, .0e,4arking
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lot will be. for the nonexclusive use of Aubgrn-tportsi& Marine's
-,, cuStomers ,iind2employees, and no overnight storage will be
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Our understanding is that the current agreement between
Auburn Sports W'Maine and the City of Auburn provides that
Auburn Sports & has use of the parking lot for a
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minimum of three/years beginning in December 1990. The three
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year extension, therefore , would entitle Auburn Sports & Marine
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:41 to use of the parking Ibt 'atjleaat until December 1996, after .
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which the use will not be terminatedunless the City of Auburn
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, has a substantial need:,to,use: the lot for a public purpose or
Auburn Sports & Marine ceases doing business at its present
location.
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g If this reflects the City of Abburn!'s,understanding of the
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agreement and the extension, please have at authorized
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representative of the City sigh,and.::return' tbi$ letter to us. If
c-, the City's understanding differSfrOmjOurunderstandiMlw. please
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let me know so that we can resolve -APS.' such differences
4 similarly, if simply signing this letter dOeeCnoicomply with any
?"' E policies or requirements imposed on or by the City for entering
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FAx (206)628-7040 „ . .
ANCHORAGE,ALASKA ' BELLEvUE,WASHINGTON ''BOISE,IDAHO • LOS ANGELES, CALIFORNIA
ril KNITLAND,OREGON ' RICHLAND,WASHINGTON ' WASHINGTON,D.C. • - •• -
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Mr. Andrew G. Cooley
.November 20, 1991
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Page. `a.•
into;:this kind-..of agreement, please draft the necessary
document(s) ::.to comply with those policies or requirements.
Oncethe'settlement;has been finalized, we will provide you
with ::the release and' file the••'Stipulated order of dismissal. •
Very truly yours,
•
'RAV,IS W GH • REMAINE
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Gregory., J. Kopta :"
cc: Mr. Wallace Turner
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d. dated; 79; /
.For ,the.:City of Auburn
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` dated / '2— / /
Mr. Wallace s urner
• For Auburn Sports •&`. Mar•ine
[EXHIBIT "A" ATThCUMENT TO AGREEMENT)
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KOPTG\00188.LTR
Seattle
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EXHIBIT A
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WASIHINGTONueitt- zS IN, 17-d
Ali tl Pig!TY eioLkixti
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August 26, 1991 r - ,p(
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Mark Bucklin
Keating, Bucklin & McCormack
4141 Seafirst Fifth Ave.Plaza
Seattle, WA. 98104
Re: Auburn Sports and Marine v City of Auburn
King County Cause No. 89-2-22133-1
Dear Mark,
Enclosed is a copy of the counterclaim that Auburn Sports
and Marine filed in response to the Auburn condemnation
action. I do not know the date the City was served. Lawrence
Warren handled the condemnation action for the City and it
is my understanding that he has been handling the
Counterclaim since it was received by the Auburn on June 14,
1991.
Please file a notice of association and prepare a defense
for the City on the behalf of the Authority. A Reservation
of Rights letter from Lew Leigh will follow.
This is our first notice of this lawsuit so I have no
additional material to submit for your review.
Sincerely,
Peg Campbell
Claims Manager
enclosure
cc: Stephen R. Shelton, City Attorney
Pat Dugan, Finance Director
Lawrence Warren, Warren, Kellogg, Barber, Dean &
Fontes, P.S.
15215 52nd Ave. South, Suite 10,Tukwila, WA 98188 •
(206) 7646471 SCAN 443-6471
FAX 764-4067 FAX SCAN 443-4067
CITY OF AUBURN * LEGAL DEPARTMENT
MEMO
DATE: August 28, 1991
TO: Gayle Butcher, Deputy City Clerk
FROM: Steve Shelton, City Attorney
RE: Auburn Sports & Marine; Claim
Pursuant to your request today, enclosed please find
relevant background information for the Reservation of
Rights letter sent to Pat Dugan from W.C.I.A. regarding the
counterclaim filed by Auburn Sports & Marine in a pending
condemnation action brought by the City.
If you have any questions or concerns, please do not
hesitate to contact me.
t-C) Atr
STEVE SHELTON
City Attorney
SRS:jb
(206) 931-3030
Legal Department
August 28, 1991
Lawrence J. Warren
Attorney at Law
100 S. 2nd Street
Renton, WA 98057
RE: Harvey Road Condemnation; Auburn Sports i Marine
Counterclaim
Dear Mr. Warren:
Pursuant to our discussions, please be advised that I did
refer the Counterclaim in the above-referenced case to the
Washington Cities Insurance Authority which has determined
that coverage on the Counterclaim only is appropriate. Peg
Campbell, Claims Manager, has requested Mark Bucklin of
Keating, Bucklin & McCormack to file a Notice of Appearance
on behalf of the Association. I discussed the matter with
Mark yesterday and he stated that Andrew Cooley of his
office will be handling the defense of the counterclaim.
(See attached letter)
As you have been representing the City to date on the
defense of the counterclaim and are continuing to represent
the City in the condemnation, I would request that you
contact Mr. Cooley and bring him up to speed on the case and
then coordinate your efforts.
As an aside, I have reviewed the Agreement between the City
and Fred Meyer and noticed a letter dated July 9, 1990 to
Ken Booster, Engineering Division for Fred Meyer, from City
Engineer Mary Seabrands wherein Mr. Seabrands noted that you
had advised that there was "just cause" for any Auburn
Sports & Marine's loss of business to be passed on to the
Contractor/or Developer of the project which was Fred Meyer.
Would you please review this aspect of the case in your
discussions with Mr. Cooley.
I will inform Mr. Cooley of the above by a copy of this
letter and I will certainly be available to discuss the case
with either or both of you at your convenience.
Very truly yours,
"6, IlikW--
STEPHEN R. SHELTON
City Attorney
cc: Andrew Cooley, Attorney at Law
Mary Seabrands, City Engineer
SRS:jb
WASHINGTON CITIES INSURANCE
AUTHORITY
j` I t
AUG 2 11991
August 26, 1991 CITY OF AUBURN
CITY ATTORNEYS OFFICE
Mark Bucklin
Keating, Bucklin & McCormack
4141 Seafirst Fifth Ave.Plaza
Seattle, WA. 98104
Re: Auburn Sports and Marine v City of Auburn
King County Cause No. 89-2-22133-1
Dear Mark,
Enclosed is a copy of the counterclaim that Auburn Sports
and Marine filed in response to the Auburn condemnation
action. I do not know the date the City was served. Lawrence
Warren handled the condemnation action for the City and it
is my understanding that he has been handling the
Counterclaim since it was received by the Auburn on June 14,
1991.
Please file a notice of association and prepare a defense
for the City on the behalf of the Authority. A Reservation
of Rights letter from Lew Leigh will follow.
This is our first notice of this lawsuit so I have no
additional material to submit for your review.
Sincerely,
Peg Campbell
Claims Manager
enclosure
cc: Stephen R. Shelton, City Attorney
Pat Dugan, Finance Director
Lawrence Warren, Warren, Kellogg, Barber, Dean &
Fontes, P.S.
15215 52nd Ave. South, Suite 10,Tukwila, WA 98188 •
(206) 764-6471 SCAN 443-6471
FAX 764-4067 FAX SCAN 443-4067
.
, . .
(206) 931-3030
Legal Department
August 15, 1991
Margaret Campbell
Claims Manager
W.C.I.A.
15215 52nd South, Suite #10
Tukwila, WA 98188
RE: Auburn Sports & Marine v. City of Auburn;
Coverage Inquiry
Dear Ms. Campbell:
Pursuant to our telephone conversation this date and your
request, enclosed please find a copy of Auburn Sports &
Marine's Counterclaim for Tortious Interference with
Property, Nuisance and Trespass which was filed during the
condemnation proceedings for your review as to potential
coverage by the Authority.
For your information, please be advised that Lawrence J.
Warren has been representing the City in the condemnation
action and the initial stages of the counterclaim defense.
Mr. Warren is available at 255-8678 if you need further
information to assist you in this question of coverage.
Thank you very much for your review and consideration.
Very truly yours,
t.-
STEPHEN R. SHELTON
City Attorney
SRS:jb
Enclosure
cc: Lawrence J. Warren
STATE Or: WASHIfItilUty ,)_t ,%, . .—••••
OF MAILING —
Cp,Tne un OF KING / ( ' BEcEovE
Tne urd!r6.gned.,ye.ng fir( b.�orn.on oatl+.states Tn,t on MS daY i .. D
I op W;d•`d rn use ma ds Ole •Unu.dS!a;es 01 Ameri_l a properly stamped and
ar1ArcSled enve&C,re,moi d to the attorneys of rec0.d of all;aart.es.mitten-wig
a copy the•• nt to v.hKh this athda vd is atia:heJ
1 / ► 1 4 1991
..`.r.-4i i//L/'.. C--15OFcw._
0
day o, t
1 SuCscnbed 49HALL BA r U •Y� t/ �m
2 •; 4e' '
Notary Put+hc,n and 1. . State o, \ L—
3 wasnrngton
4 My.x .+4+ta
or.S4"
IN THE SUPERIOR COURT OK THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF KING
5
6 IN RE THE MATTER OF THE PETITION )
OF THE CITY OF AUBURN, A MUNICIPAL ) NO. 89-2-22133-1
CORPORATION OF THE STATE OF )
WASHINGTON TO ACQUIRE BY ) AUBURN SPORTS AND
8 CONDEMNATION CERTAIN PROPERTY ) ( MARINE'S FIRST AMENDED
9 AND PROPERTY RIGHTS FOR THE ) COUNTERCLAIM FOR TORTIOUS
PURPOSE OF ACQUISITION OF PROPERTY ) INTERFERENCE WITH
10 AND PROPERTY RIGHTS FOR ROADWAY ) PROPERTY, NUISANCE,
PURPOSES (IMPROVEMENT OF EIGHTH ) AND TRESPASS
STREET NORTHEAST FROM AUBURN WAY )
11 NORTH TO "F" STREET N.E. IN )
12 AUBURN, WASHINGTON AS CONTEMPLATED )
. BY CITY OF AUBURN ORDINANCE NO. )
13 4375. )
14 As a counterclaim against the City of Auburn ("the City") ,
15 respondent Wallace Turner, doing business as Auburn Sports and
16 Marine, alleges as follows:
17 FIRST CAUSE OF ACTION: TORTIOUS INTERFERENCE
18 1. The City blocked or reduced access to counterclaimart's
19 property with its road construction activities. The City
20 negligently prolonged these activities, making the road
. 21 construction an unreasonable interference with counterclaimant's
22 property right in ingress and egress to the adjacent public
23 thoroughfare. As a result of this tortious interference with its
24 property rights, counterclaimant has been damaged.
25 SECOND CAUSE OF ACTION: NUISANCE
COUNTERCLAIM FOR BUSINESS INTERRUPTION - 1
KOPTG\00050.PLD
• Seattle
DAVIS WRIGHT TREMAINE
. Law Ornces
2600 CENTURY Sgcwe. ryor Fovemr Avv+Ut
Svame.WasweO w gator-1688
(206)6sa-pyo
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2 . The City's unreasonable road construction activities
2 obstructed counterclaimant's free use of its property by
3 depriving it and its customers of direct access to that property.
This obstruction constituted a nuisance which substantially
5 invaded counterclaimant's use and enjoyment of its property.
6 counterclaimant has been damaged by this nuisance.
THIRD CAUSE OF ACTION: TRESPASS
8 3 : The City's unreasonable road construction activities
9 directly or indirectly entered on counterclaimant's easement for
10
ingress and egress to the
g g public thoroughfare. This entry
11 constituted a trespass to the easement and resulted in damages to
12 it.
13
WHEREFORE, counterclaimant
prays for the following relief:
14 1. Compensatory damages for its business losses and other
15 damages resulting from the City's road construction activities in
16 an amount to be established at trial;
17 2 . Statutory costs and attorneys fees; and
18 3 . Such other and further relief as the Court deems just
19 and equitable.
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COUNTERCLAIM FOR BUSINESS INTERRUPTION - 2
KOPTG\00050.PLD
Seattle
DAVIS WRIGHT TREMAINE
Lew Omces
.boo Cexnnr SQUARE•1501 Fourni Aw+ue
SEAM ...W..xn+ccON g8EO.1688
fl
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DATED this I day of , \ `- 991.
2 DAVIS 'I. HT TREMAINE
3 Attorney- for Counterci.; imant
4,
5 By 1 - _. •
Hall : .etz
WSBA# 456
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COUNTERCLAIM FOR BUSINESS INTERRUPTION - 3
KOPTG\00050.PLD
Seattle
DAVIS WRIGHT TREMAINE
LAW OfnCES
.600 CENTURY SC—QWtf•1501 FOURTH AVEHtn
S!A a.c•WA3Ml1 TRn 9810-1688
(206)6..-315o
•
t•^!` •
WARREN S, KELLOGG, BARBER/
DEAN & FONTES, P.S.
ATTORNEYS AT LAW
LAWRENCE J.WAREN
DANIEL KEELLOGGGCity of Auburn-City Attorneys Office
MARK
B
DAVID 0.DEAN Wn ED
ZANETTA L.FONTES
ROBERT L.SEWELL
1 JA on IJi) V i~
June 4, 1991
Stephen R. Shelton, Esq.
Auburn City Attorney
25 West Main
Auburn, Washington 98001
Re: Auburn Sports and Marine
Dear Steve:
Several days ago I forwarded you a copy of a letter mailed to me by Hall Baetz, attorney
for Auburn Sports and Marine. In the letter he disputed whether or not they could
maintain a condemnation action for loss of profits due to the length of time it took the
city's contractor to build N.E. 8th in front of Auburn Sports and Marine. He also attached
a counterclaim for tortious interference with property, nuisance and trespass.
The reason for my letter is to determine whether or not you wish me to continue to handle
this matter. Our initial conversation on this topic left the responsibility in my hands until
such time as there was a pleading of negligence. It was my understanding that once a
negligence claim was stated your insurance coverage would take over the defense of the
action. Since we now have a mixed bag with eminent domain and tort theories, I am not
sure how you wish to proceed.
It may also be possible to tender the defense to the city's construction contractor. I don't
• know how your city contracts are worded, but there are frequently hold harmless provisions
in the contract that would require the construction contractor to defend tr.ib action.
Before I expend any substantial time responding to Mr. Baetz's letter, I thought I should
determine whether or not you wish me to continue to handle the action.. I will await your
direction.
Very y yours,
•
Lawrence J. arren
LJW:as.
A8.70:56.
Ilkommaismommengs
POST OFFICE BOX 626 • 100 SOUTH SECOND STREET
RENTON, WASHINGTON 98057
PHONE (206) 255-8678 • TELECOPIER (206) 255-5474
•.,.
DAVIS WRIGHT TREMAINE
LAW OFFICESn 107911
2600 CENTURY SQUARE ' 150I FOURTH AVENUE • SEATTLE,WASHINGTO P 88
(206) 622-3150 V 1991
HALL BAETZ WARRENDEAN, KELLPONTOGGES, BARBER? . ,
(206)628-7614 & , .S
May 10, 1991
Mr. Lawrence J. Warren RECEIVIID
Warren, Kellogg, Barber,
Dean & Fontes, P.S. JUN 1 4 1991
100 S. 2nd St.
P.O. Box 626
Renton, WA 98057CITYOF RN
C ORNEYS OFFICE
Re: Auburn Sports & Marine
Dear Larry:
We looked at the cases you cited in your letter of March 4 ,
1991, and did some research of our own. We remain convinced that
we have a viable claim for damages against the City.
The cases you cited stand for the proposition that a city
may not be held liable for incidental, temporary obstructions of
a roadway, but "'they must not be unnecessarily and unreasonably
interposed or prolonged. " Lund v. St. Paul, Minneapolis &
Manitoba Ry. , 31 Wn. 286, 293 (1903) (quoting Clark v. Fry, 8
Ohio St. 358, 374 (72 Am. Dec. 590) ) (emphasis in original) . We
believe that the evidence here will establish that the
obstructions incident to the City's road construction activities
were unnecessary or unreasonably interposed or prolonged.
Therefore, the doctrine of damnum absque injuria, whether it
remains viable or not, does not apply to our circumstances.
Our research indicates that the City's activities are
actionable either as a tortious interference with Auburn Sports
and Marine's property right in ingress and egress to the public
thoroughfare, as a nuisance, or as a trespass. See, e.g. , Olsen
v. King County, 71 Wn.2d 279 (1967) and Peterson v. King Count",
45 Wn. 2d 860 (1954) . In both of these cases, plaintiffs were
allowed to recover for obstruction to their right of access to
their property due to governmental negligence.
FAX: (206)628-7040 • TELEX:328919 DWT SEA
ANCHORAGE, ALASKA ' BELLEVUE, WASHINGTON • BOISE, IDAHO • Los ANGELES, CALIFORNIA
.
Mr. Lawrence J. Warren
May 10, 1991
Page 2
Auburn Sports and Marine will not pursue a claim for taking
or damaging its rights of ingress and egress. We have amended
the counterclaim to reflect the legal theories on which we intend
to proceed. A copy of the amended counterclaim is enclosed.
While we are committed to pursuing the counterclaim, we also
remain convinced that a settlement of this dispute would be in
the best interests of both parties. To that end, we renew our
settlement offer of $30, 000. I hope that further consideration
of the authorities, and the prospect of having to resolve these
issues through further litigation, will make this offer more
attractive to the City.
I look forward to hearing back from you.
Very u y • -urs,
•
DAVI. WRIGHT ' REMAINE
•
Hall Baetz
Enc.
cc: Auburn Sports & Marine
72
WASHINGTON CITIES INSURANCE
F�� GEEP •^NQT
I AUTHORITY
A_ AUG 2 a 1991
August 27, 1991
Pat Dugan
Finance Director
City of Auburn
25 West Main St.
Auburn, WA 98001
RE: Auburn Sports & Marine vs. City of Auburn
No. 89-2-22133-1
King County
Dear Mr. Dugan:
At the time a Summons and Complaint is filed a coverage
determination is necessary, based on the allegations of the
Plaintiff in that complaint.
The above captioned suit has been assigned to Defense
Attorney Mark Bucklin (623-8861) , who will defend the
negligence allegations in the case.
Coverage and defense, subject to the following
reservations, is offered to you for actions occurring on or
about January 1, 1989.
Language in the complaint refers to a "taking" of real
property. Inverse condemnation is excluded from coverage in
Exclusion "o" under the Comprehensive General & Automobile
Liability Coverage section, and Exclusion "b" under the
Errors or Omissions section of the coverage document.
There may be other terms and conditions of the Coverage
Document that may apply to this matter but we presently are
without sufficient information to make that determination.
Therefore, the defense and coverage of this suit is being
conducted under a full reservation of rights and the
Authority reserves it's rights to determine coverage and/or
defense or denial thereof until such time as the full facts
are known.
15215 52nd Ave. South, Suite 10,Tukwila, WA 98188
(206) 764-6471 SCAN 443-6471
FAX 764-4067 FAX SCAN 443-4067
Page 2
Pat Dugan
City of Auburn
August 27, 1991
Should a denial of coverage and/or defense be
determined, an appeal process provided by the Authority By-
laws, Article VII, Section 2, Subsection (a) states in part:
"Any member city or person aggrieved by the Executive
Director's written determination to deny them coverage. . .
may appeal the decision of the Executive Director to the
Board. The appeal must be initiated by the aggrieved member
city or person within thirty (30) days following receipt of
the Executive Director's written determination. . . ". The
written request for appeal must be served upon the Executive
Director or President of the Board.
Even though the defense and other handling that the
Authority affords you is undertaken on a full reservation of
rights, we seek your cooperation in the future handling of
this lawsuit as required under terms of the Joint Protection
Program.
Sincerely,
o
Lewis E. Leigh
Executive Director
/LEL
cc: Mark Bucklin, Defense Attorney
Steve Shelton, City Attorney