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HomeMy WebLinkAboutAuburn Sports & Marine V City of Auburn • FILED For Record At Request .. .. . - • , .. . .. . . .. .,... .. .. .. .. : . • . . . . .. . . .. .. , .. . ,. . . . . . DAVIS WRIGHT TREMAINE ... . . . : .. .. .. , . . . . . .• • .• •. . LAW OFFICES - - • 2600 CENTURY SQUARE ' 1501 FOURTH AvENUE • SEATTLE,WASHINGTON 98101-1688 , :. (206)622-3150 . . . . ! '':'.. „ .. .• .. . 011c001,T:1:'''KOPTA: 71 .. .. .. . • - :L 1, ,. :!fL .4. I. .. :. • !. (206)(128 7692 •,,A, ii ., .. . . -. •.. November 20, 1991 Li t3 •• ! .. DEC 5 1; • 1 - ...• • . .• .. •• .: .. . . .,. ... :, „:. ... , . .. ,. . ..... :,. ., Cm- ,:::. ,,. . ,. • , . cm; Ari,:.i•-,,i.‘,':; "_..."..•:- . : Mr. Andrew G: CoOiey ./,,, ,s • . , Keating, iAlcklin' &,41cOOrliack, p. ..,, 4141 SeafirSt-kfth Avenue P10.6. •:4• i• 44Zr 800 Fifth Avenue .;••'. .::' ....'" .:•1 .,,,' Seattle, WA 9814 :•'' •;'. :,.'. ...':. .-.*:: .----,,... ,:::::::,;,:. .4 N.. .„.; .. , .. .. . . 9 ••• .. s.; ........ Re: Auburn Sports FOlarinev. Cityof Auburn C\J CV 4 cp Dear Mr. Cooley: CV ''',.:' :: . ,. • , -, , . . 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. 4 stipulated Yorder of dismissal. Under this extension, .0e,4arking J 1 lot will be. for the nonexclusive use of Aubgrn-tportsi& Marine's -,, cuStomers ,iind2employees, and no overnight storage will be , • 1 ' permittedontha-Iot , . „ • . . 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 A E . . , minimum of three/years beginning in December 1990. The three A, 'A . ,.... year extension, therefore , would entitle Auburn Sports & Marine -,, :41 to use of the parking Ibt 'atjleaat until December 1996, after . .q which the use will not be terminatedunless the City of Auburn -,, , has a substantial need:,to,use: the lot for a public purpose or Auburn Sports & Marine ceases doing business at its present location. :.% g If this reflects the City of Abburn!'s,understanding of the 1 agreement and the extension, please have at authorized 41 representative of the City sigh,and.::return' tbi$ letter to us. If c-, the City's understanding differSfrOmjOurunderstandiMlw. please cm 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 ..;1.,. ,..„, :.:.tf, • 11 KAPTG\00188,LTR , . • - -4- .: so.t.tis ••••:. ... ... .:-,51 • I . ... li -•-- ...A. .. • • ' I Pi''. FAx (206)628-7040 „ . . ANCHORAGE,ALASKA ' BELLEvUE,WASHINGTON ''BOISE,IDAHO • LOS ANGELES, CALIFORNIA ril KNITLAND,OREGON ' RICHLAND,WASHINGTON ' WASHINGTON,D.C. • - •• - •!-I '''. P\ 7.755'.57 ••. -- IL • --,• : .L4-:,•_:,.97-•-r7..7.•'`vaL:i, ••";'. :.:-..-;," 1. 07;77V4,:..P''•'?"•91;; ' :77:••:‘• ••• - - •-- •• .--. .,,,‘Z. :, ,4:.... --.'.7.— :F-.44.iiirdeekAIMITTFaliggET: ' -1AtABFWAr- ''''' . '' - . ,-:- ,. f,.%,',,;-.,.;,; :,:i.s:Nti ,4::::Ft....;.-.+p,,..• ''?7.: ':: ',.• - : ';':• !., • • . '; . Mr. Andrew G. Cooley .November 20, 1991 • 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 • Gregory., J. Kopta :" cc: Mr. Wallace Turner loch • d. dated; 79; / .For ,the.:City of Auburn fl - C7 • • ` dated / '2— / / Mr. Wallace s urner • For Auburn Sports •&`. Mar•ine [EXHIBIT "A" ATThCUMENT TO AGREEMENT) • • KOPTG\00188.LTR Seattle •�,.i-:: ,.< ..- .t�:'•.• .��. . ..iA's- ,. ., a7,'. Z-Nr. ....�� ... ..<tW:a3CitEVariktCa-}}Wi aT 777. _ ,.• ,. 1 .. ....•-•..... .1 .,..:... . . ? • . • . . i .. .• .„..... .• .. . I . ••, . •• • ; ..• . , .• EXHIBIT A . . .: . . . . .. • . • Legal Description of Parking Lot • „, . - ... . .. .. . . . . . . .. .. .. i -.C: ::' ...: :' ••• ".,. • • • . . • ..• •• .. . . 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VV A.-- CI 1 WASIHINGTONueitt- zS IN, 17-d Ali tl Pig!TY eioLkixti ' ,/416L de% / t/ha August 26, 1991 r - ,p( f, 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 • ( 1 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. 20 21 22 23 24 25 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 1 DATED this I day of , \ `- 991. 2 DAVIS 'I. HT TREMAINE 3 Attorney- for Counterci.; imant 4, 5 By 1 - _. • Hall : .etz WSBA# 456 6 7 8 9 10 11 12 13 14 15 16 17 . 18 19 20 21 22 23 24 25 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