
    
      OPINION ISSUED DECEMBER 16, 2010
    
    TOMMY DALE POWERS AND EARNESTINE MESSER POWERS V. DIVISION OF HIGHWAYS
    (CC-08-0159)
    Ronald J. Rumora, Attorney at Law, for claimants.
    C. Brian Matko, Attorney at Law, for Respondent.
   PER CURIAM:

This claim was submitted to the Court for decision upon a Stipulation entered into by claimants and respondent wherein certain facts and circumstances of the claim were agreed to as follows:

1. Claimants own property located approximately one half mile up State Route 65/9.

2. Five Mile Creek runs between Claimants’ property and State Route 65/9.

3. Respondent is responsible for the maintenance of State Route 65/9 in Mingo County.

4. In the mid-1980s the flow of Cartwright Branch, a small waterway that feeds into Five Mile Creek, was altered from entering a culvert located downstream of the Claimants’ property to entering a culvert, constructed by the Division of Highways, upstream of the Claimants’ property.

5. Claimants asserted that as a result of where Cartwright Branch enters Five Mile Creek the banks of the creek adjacent to Claimants’ property began to erode.

6. In either lune or My 2006, in order to shore up the stream bank adjacent to State Route 65/9 and prevent further erosion, the Division of Highways installed gabion baskets along the banks of the creek directly across from the Claimants’ property.

7. In May 2007, a heavy rain storm caused the water to rise in Five Mile Creek, which while insufficient to overflow the creek

3. As a result, claimants’ vehicle sustained damage in the amount of $944.67. Claimants’ insurance deductible was $500.00. Thus, claimants’recovery is limited to that amount.

4. Claimant and respondent agree that the amount of $1500.00 would be a fair and reasonable amount to settle this claim.

The Court has reviewed the facts of the claim and finds that respondent was negligent in its maintenance of State Route 62 on the date of this incident; that the negligence of respondent was the proximate cause of the damages sustained to claimants’ vehicle; and that the amount of the damages agreed to by the parties is fair and reasonable. Thus, claimants may make a recovery for their loss.

Accordingly, the Court is of the opinion to and does make an award in the amount of $500.00.

Award of $500.00.  