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Insurer drops flood suit against Naperville

Naperville, Aurora and assorted other DuPage County towns are off the hook for refunding insurance payments they received after the April 2013 floods. The suit recently filed by Farmers Insurance Co. was dismissed with prejudice Thursday.

The suit, filed on the one-year anniversary of the regional flooding emergency, sought to recover funds paid out for what company spokesman Trent Frager described as “a completely preventable issue.” Farmers asserted in the April 17 complaint that the county and 29 of its municipalities could have taken steps to avoid the damage that affected about 9,000 DuPage properties, closed schools and bridges, and led to $15 million in federal flood relief payments to county residents and business owners.

According to Robert Wilder, senior assistant attorney for Naperville, the complaint alleged that the city neglected to maintain its sewer system, “and that the flooding and water intrusion constitutes a ‘taking’ under the Illinois Constitution.”

Wilder said the city responded to the suit as part of a 10-municipality consortium designed to unify the defense in an effort to have the action dismissed with prejudice, which would eliminate “the need to engage in costly discovery.”

However, Wilder said, one of the consortium’s members pointed out that the Code of Civil Procedure lacks a way for Farmers to voluntarily dismiss with prejudice, only permitting dismissal without it.

“Therefore, in order to obtain a dismissal with prejudice it was necessary to ‘settle’ the litigation,” Wilder wrote in a memo to City Manager Doug Krieger Friday. “The Defendants agreed not to seek reimbursement of their filing fees in exchange for the dismissal with prejudice. The dismissal should bar any further claims by Farmers for all causes of action contained in the complaint and applies to the dates identified in the complaint.”

In the June 12 agreed order, 18th Judicial Circuit Judge Dorothy French said DuPage County, Naperville, Aurora and eight other towns named in the action “hereby agree to settle all claims asserted in plaintiff’s complaint as well as all theories, actions and causes of action pled with prejudice in exchange for agreeing defendants’ waiver of costs.”

A separate suit filed by Farmers making the same claim against Naperville, 11 other towns and Will County, has yet to be settled. Wilder said the city will be working with the other defendants toward a voluntary dismissal of that complaint by Farmers as well.

“Barring any unforeseen circumstances, we expect to accomplish this task within the next two weeks,” he said.

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