
    
      Opinion issued September 12, 1972
    
    THOMAS EUGENE CARELLI and FRANK CARELLI, Partners doing business as the SMOKE HOUSE, a partnership, Claimants, vs. WEST VIRGINIA DEPARTMENT OF HIGHWAYS, a corporation, Respondent.
    (No. D-228C)
    
      Louis R. Tabit, Esq., for the Claimants.
    
      Claude H. Vencill, Esq., for the Respondent.
   PETROPLUS, JUDGE:

This claim was submitted, without a hearing, on Petition, Answer and Stipulation of Facts. The amount of the claim is $2,300.00.

The facts are as follows: Claimants are partners in a business enterprise known as the Smoke House, situate in the Town of Montgomery, Fayette County, West Virginia, which business was operated on leased property. While the Mountain State Construction Company was engaged in doing certain excavation and construction work on the rebuilding of West Virginia Route No. 61 near Montgomery, a large impoundment of water was released from an abandoned coal mine on a hillside overlooking the City of Montgomery, flooding the Town of Montgomery, including the property leased by the claimants. Claimants incurred damages to their leasehold estate, personal property and loss of profits in an amount exceeding $2,300.00.

Respondent denied liability on the ground that the work was being performed by an independent contractor, who should be solely responsible for his negligence in releasing the flood waters. On the question of liability, this Court refers to the opinion written in the case of Firestone Tire & Rubber Company vs. West Virginia Department of Highways, Claim No. D-227 decided February 16, 1972. No purpose can be served by repeating the position this Court has taken on a series of Montgomery flood cases insofar as liability is concerned, and reference is made to the above mentioned case, as well as other cases decided by the Court of Claims, for the determination of the respondent’s liability.

The stipulation fixes damages by agreement of the parties in the total amount of $1,300.00, covering damages of every kind and description whatsoever.

Award is accordingly made to the claimants in the amount of $1,300.00.

Claim allowed in the amount of $1,300.00.  