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HADLOCK POND RULING FAVORS TOWN

by Nick Reisman (reisman@poststar.com
Wednesday, February 3, 2010

Fort Ann--A state court last week ruled that an insurance company for the construction firm that built the Hadlock Pond dam should pay the legal bills for the town of Fort Ann accrued in the wake of the structure's 2005 failure.

The ruling handed down last week by the state Supreme Curt Appellate Division requires Kubricky Construction Corp.'s insurance company, Liberty Mutual, to pay Fort Ann's legal costs associated with the lawsuits that resulted from the August 2005 dam breach.

The ruling paves the way for the town to continue with the costly series of lawsuits that have accrued since the dam failure. A civil trial brought by "upstream" property owners seeking damages from the town is due to start in May.

The incident damaged homes and drained the man-made pond. It also resulted in multiple lawsuits.

In addition to the town, the upstream property owners are suing the dam's builder, Kubricky; the dam's designer, HTE Northeast; and the company charged with testing the dam, Atlantic Testing Laboratories Limited.

The five judges who sit on the Appellate Division Third Judicial Department determined that Kubricky Construction never obtained an owner's risk policy, which was obligation contained in a contract signed with town.

The company also never listed the town of Fort Ann as an additional insured party.

"The written contract between Kubricky and the town required Kubricky to maintain such insurance until the town accepted the completed project, "The judge panel wrote in its decision dated Jan. 28. Town Attorney John Aspland said the ruling is being review.

"We received the decision and together with coverage counsel we're reviewing it, "Aspland said. "I'm sure it will be the subject of discussion at the court conference.

The appeals court judges last June also ruled in favor of the 100 or so Hadlock Pond residents who filed suits against the town of Fort Ann and the companies that built, tested and designed the dam that failed in 2005.

The ruling by the Appellate Division of state Supreme Court would most likely mean the residents can begin submitting evidence in a case.

Depositions in the lawsuit involving the residents versus the town are nearly complete, Aspland said. The next pre-trial conferences are set for February 22 and 25, he said

The trial has been set for three weeks in May.

Published in the Glens Falls Post Star 2/4/2010