04/27/2017
PLEASE READ THIS ENTIRE POST:
NOTICE OF FINAL SETTLEMENT
ALGIERS WATER TOWER CLASS ACTION
CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS
STATE OF LOUISIANA
NO. 02-5963 DIVISION L-6
HELENE BENN JONES, ET AL
vs.
CAPITOL ENTERPRISES, INC., ET AL
ATTENTION
CLASS MEMBERS IN THE ALGIERS WATER TOWER CLASS ACTION
IF YOU ARE A RECOGNIZED CLASS MEMBER, PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS WILL BE AFFECTED.
Helene Benn Jones, and others, as class representatives, brought suit against Capitol Enterprises, Inc. and the Sewerage & Water Board of New Orleans, alleging that they sustained injuries and damages as a result of the Algiers water tower sandblasting project that took place December 1, 2001 through March 13, 2002. The class representatives sought to force Capitol Enterprises, Inc. and the Sewerage & Water Board of New Orleans and their insurers, including the excess insurer, Firemanâs Fund Insurance Company, to pay damages to class members resulting from the emission of sand, silica, particulate matter, noise, etc. emanating from the project.
On March 23, 2004, the court certified this action as a class action and defined the class membership. Appropriate NOTICES were previously published advising all potential class members of the existence of the class action, their rights as class members, and the deadline for any class member to opt-out and to be excluded from the class. Thus, the membership of the class has already been determined, with no class member having opted out from the class. The Courtâs prior orders and NOTICES also defined those Class members who are recognized claimants to participate in any proceeds of any settlement in this action, those recognized claimants being class members who previously filed timely proofs of claim and those qualified individuals, who timely appealed their exclusion from the prior settlement in accordance with the Courtâs orders. By Order of the Court, no additional class members will be accepted or recognized for participation in distribution of proceeds from this proposed final settlement.
The purpose of this Notice is to inform you of a final settlement being entered into with Firemanâs Fund Insurance Company, the excess insurers of Capitol Enterprises, Inc. and the Sewerage & Water Board of New Orleans, in the total amount of $5,000,000.00. After payment of court approved charges, including costs and fees, funds will be allocated in the future by the Court, with the help of the Special Master, to individual class members who are recognized claimants.
The NOTICE is to advise you that recognized claimant class members DO NOT HAVE TO DO ANYTHING AT THE PRESENT TIME IF YOU HAVE NO OBJECTION TO THE RESOLUTION OF THIS ACTION. It is also to advise you of the procedure to be followed if you wish to object to the settlement. The Court will at a later date determine the appropriate and fair allocation of the settlement funds. The individual class members who are recognized claimants will be notified in the future at the discretion of the Court.
The Court has given preliminary approval to this final settlement reached with Capitol Enterprises, Inc. and the Sewerage & Water Board of New Orleans and their excess insurer, Firemanâs Fund Insurance Company, by Order entered on April 25, 2017. The Court has set a fairness hearing for the 1st day of June, 2017 at 9:00 a.m. The Court will decide whether to approve the final settlement at this hearing. If you have no objection, you do not have to appear. If you desire to do so, you have the right to appear before the Court to object to the settlement. If you wish to object to the settlement, you must file your written objection with the Court as set forth below. If you fail to file a written objection with the Court by that date, as set forth below, then you will be deemed to have waived any objections to the settlement.
Any objection by class members to the fairness or reasonableness of the proposed settlement, and all terms thereof as provided in the final settlement, will be considered by the Court only if made in writing, in advance, by mailing such written objection to the Clerk of Court at the address provided below, via U.S. Mail, postage prepaid, and postmarked no later than midnight of May 25, 2017. Further, any objection must state the specific reason(s) for the objection, include any other supporting materials, papers or briefs that the objector wishes the Court to consider, and must be sent to:
Clerk of Court
Civil District Court for the Parish of Orleans
421 Loyola Avenue
New Orleans, LA 70119
Attention: Algiers Water Tower Class Action
Case No. 02-5963, Division L-6
Only such class member(s), if any, who timely provide and serve a written objection may be heard at the fairness hearing, either in person or through personal counsel hired at the objectorâs expense, to object to the fairness, reasonableness or adequacy of the proposed settlement.
All Class members who are recognized class members have already filed a proof of claim. This includes those persons who timely appealed to the Court their denial of inclusion in the prior partial settlement. It is not necessary to file a new proof of claim, and no new proofs of claim will be accepted or considered by the Court. If necessary, recognized claimants will be notified in the future regarding the appropriate method and time to submit any additional information desired by the Court.
If your mailing address has changed and you have not already done so, you must provide an updated address in writing by email addressed to [email protected] or by mail or hand delivery to 814 Howard Avenue, New Orleans, LA 70113.
This is very important because settlement allocations to individual class members who are recognized claimants will be determined in the future, and settlement checks will be mailed to recognized claimants. If such settlement check mailings are returned as undeliverable or if any settlement check is not cashed within six (6) months after mailing, any unclaimed allocation will be forfeited and withdrawn by the Court. The purpose of this settlement and distribution will be to finally resolve and close this litigation.
You must be made aware that a Judgment by the Court approving the settlement, will include all members of the Class, and end this litigation permanently.
The court has previously appointed as class counsel, Allain F. Hardin, FRANSEN & HARDIN, A.P.L.C., 814 Howard Avenue, New Orleans, LA 70113. Inquiries regarding this class action should be directed to: Allain F. Hardin, FRANSEN & HARDIN, Plaintiffsâ Class Counsel, Algiers Water Tower Project, 814 Howard Avenue, New Orleans, LA 70113. Please DO NOT contact the Clerkâs office or the Judgeâs chambers. The details of the partial settlement may be viewed at Class Counselâs office at 814 Howard Avenue, New Orleans, LA 70113 between the hours of 10:00 a.m. and 4:00 p.m. from the date of this Notice to May 26, 2017.
IF YOU ARE A CLASS MEMBER AND YOU DO NOT OBJECT TO THE SETTLEMENT, YOU DO NOT NEED TO TAKE ANY FURTHER ACTION AT THIS TIME.
PLEASE CONTINUE READING TO ANSWER POSSIBLE QUESTIONS YOU MAY HAVE:
FREQUENTLY ASKED QUESTIONS ABOUT THE ALGIERS WATER TOWER CLASS ACTION LITIGATION:
1) WHAT IS THE ALGIERS WATER TOWER CLASS
ACTION?
On December 1, 2001 the Sewerage & Water Board began sandblasting the Algiers Water tower in the Cut Off neighborhood. The work continued in January, February, and ended on March 23, 2002.
A class action law suit was filed on behalf of the neighborhood. After a lot of legal work a settlement was reached with the first level of insurance covering the sandblasting. The settlement funds were distributed in December, 2008 at the Lower Algiers Recreation Center. You may have received an award.
The boundaries for the recognized neighborhood is from the Mississippi River to Peony Street and from the Algiers Intracoastal Canal to Westchester Street.
2) WAS THE CASE OVER THEN?
No. The case continued on against the next level of insurance (excess) for the contractor and SW&B. That company, Firemanâs Fund, refused to settle and forced the class representatives to trial. The Judge ruled in favor of the neighborhood and awarded sample damages to several class representatives. However, Firemanâs Fund did not have to pay anything because it was entitled to a credit for the first level insurance paid in the settlement.
3) WHAT DID THE INSURANCE COMPANY DO THEN?
Firemanâs Fund appealed claiming it owed nothing and challenged the individual damage awards. It lost in the Court of Appeal, but continued to fight the case saying that the class membersâ damages did not exceed what was already paid.
IMPORTANT NOTICE
IT IS NECESSARY THAT WE HAVE THE CORRECT CURRENT MAILING ADDRESSES AND TELEPHONE NUMBERS FOR ALL CLAIMANTS.
IF YOU NO LONGER RESIDE AT THE SAME ADDRESS YOU LISTED ON YOUR CLAIM FORM, PLEASE PROVIDE US WITH CONTACT INFORMATION.
IT HAS TO BE IN WRITING.
THIS CAN BE DONE IN TWO WAYS:
a) PRINT OUT THE "CHANGE OF ADDRESS FORM" FROM THIS FACEBOOK PAGE, FILL IT OUT AND RETURN IT BY E-MAIL: [email protected]
OR FAX: (504) 524-8317.
b) SEND AN E-MAIL: [email protected] OR A FAX: (504) 524-8317 WITH THE FOLLOWING INFORMATION:
1) Your old address (where you resided at when you filed the claim);
2) The names of all persons that the change of address applies to; and
3) Telephone numbers (cell and/or home) where you can be reached and e-mail.
4) HAS ANYBODY RECEIVED ANY MONEY?
No, not since December 2008 when the settlement funds received from the first level of insurance were distributed. Firemanâs Fund is entitled to an offset for the credit of approximately 3.9 million dollars, before it had to pay anything. In other words, individual damage awards made by the court have to reach that level before Firemanâs Fund has to pay. Firemanâs Fund can also appeal any new awards to the Louisiana Fourth Circuit Court of Appeal.
5) IS THE CLASS ACTION GOING TO BE OPEN TO NEW CLAIMANTS?
The court was asked to open the claims process again to all persons who resided in the designated boundary area during the time of the sandblasting project. The court refused to do so. However, the court did grant permission to:
(1) persons who lived in the class boundaries and
(2) were denied participation in 2008 and
(3) filed an appeal form with the court at the time of the partial settlement in 2008.
This decision was upheld by the Louisiana Fourth Circuit Court of Appeal and the Louisiana Supreme Court declined to review that decision. It is now final - - those who appealed in 2008 can be included if they lived in the class boundaries a the time of the project.
LATEST NEWS:
(AS OF APRIL 26, 2017)
SETTLEMENT
SUBJECT TO COURT APPROVAL
6) HAS THERE BEEN ANY PROGRESS TOWARDS A SETTLEMENT?
YES. With the help of the Special Master, we were able to work out a preliminary settlement that requires formal approval by the Court in the future. A NOTICE will be sent out to claimant households, put in The Times-Picayune and posted on this site.
7) WHY A COMPROMISE?
A compromise makes sense now because the case could go on for years more if each and every person is required to come forward and verify their damage claim. It has been 15 years since the sandblasting project and a number of claimants have moved away and some have died.
The insurance company is challenging all awards and insisting that the awards be appealed. Judge Reese in his rulings was very fair. However, the Court of Appeal has the ultimate say so and any award can be reduced. The time needed for any appeals would delay the case even more.
Another reason is the $3.9 million in credits that the insurance company is entitled to. In other words, nothing has to be paid by the excess insurer (Fireman's Fund) until that amount in judgments, after appeal is reached. Then no one could be paid until over 4,500 individual claims were addressed.
8) HOW MUCH IS THE SETTLEMENT FOR AND HOW MUCH WILL I RECEIVE?
The total settlement is Five Million, which, just like the 2008 settlement, will be distributed as determined by the Court, after payment of Court approved fees and costs. This will be determined by the Judge. Individual allocations are likely to be based on zones and similar to the previous distribution. The Court before established four exposure zones depending on how close someoneâs residence was to the water tower. There are over 4,500 claimants listed.
9) HOW LONG WILL THIS TAKE?
If the settlement is approved, settlement funds are projected to be distributed in the Fall. If the settlement is not approved, the case goes on for many more years.
10) HOW DO I KNOW IF I WILL BE INCLUDED?
If you received settlement funds back in 2008 or you appealed in Court your exclusion as a qualified class member in the first settlement in 2008, then you are likely included. Some proof of residence may be required on a case by case basis. You do not have to contact my office to verify your inclusion. A Notice will be sent to the address we have for the claimants.
11) WHAT IS THE NEXT STEP?
A Court approved Notice will be sent to last known address of claimants advising the Class members of the settlement and a fairness hearing is set for June 1, 2017. At that time the Court will consider whether the settlement is fair to the Class. The law requires that the Judge make this decision based upon all factors involved. If Class members object, they can be heard at that time.
12) IMPORTANT NOTE â IF YOUR ADDRESS CHANGED AND YOU HAVE NOT NOTIFIED US:
If you have changed your address and have not let us know before now, you need to send an e-mail to [email protected] and state in writing your name, present address, present telephone number, and your exposure address, meaning where you were during the sandblasting project in December, 2001 to March, 2002, or you can also mail it to the office at 814 Howard Avenue, New Orleans, LA 70113.
If you know of other persons who are claimants and have moved away, please get word to them that they need to give us their contact information.
13) WERENâT THERE GREATER AWARDS BEFORE?
Yes, there were prior individual sample awards at the trials before the Judge that were greater than the amount a claimant will receive in settlement. However, what must be remembered - - a) those awards were not reviewed in the Court of Appeal; b) those awards would have to first go to offset the $3.7 million credit Firemanâs Fund, as the excess insurer, is entitled to before it has to pay anything; c) many more class members would have to testify to discharge the credit and some damage awards could be rejected or be given substantially less; and d) all of this would take a great amount of time, which would deplete the number of available and interested claimants to come forward. Bottom line - - settlement resolves the case now, not years from now, without risking review in the Court of Appeal or lesser or no awards for individual claimants.
14) WHAT HAPPENS IF THE CLAIMANT IS DECEASED?
A settlement makes this issue a lot easier. Just like the prior settlement certain paperwork (i.e. death certificate) and notarized Affidavit of Death and Heirship will have to be provided. If this information is already in the claimantâs file, then likely it will not have to be redone. If a claimant died after December, 2008, the required documents will have to provided. Information will be provided in the future.
