Elks fire damage trial begins

The Dickinson City Commission received an update on restoration progress of the downtown Historic Elks Building Monday evening at City Hall and coincidentally, the site was also the center of a trial throughout Monday.

After the building suffered a destructive fire on Oct. 15, 2007, complicated litigation has been lingering, involving several countersuits.

A jury of 10 was chosen at the Stark County Courthouse in a property damage case involving defendant Wells Fargo Bank and plaintiff Scott Biggs, a tenant of the bank's second floor at the time of the blaze.

The Dickinson Fire Department and the State Fire Marshall determined the fire originated in a basement area where High Ball Construction LLC, a former contractor for the project, had been using a cutting torch to remove metal rods.

After High Ball employees left for the day, hot smoldering slag ignited combustible materials and a fire ensued, according to court documents.

Firefighting efforts caused flooding in the basement of Wells Fargo, an adjacent business.

Saturation of walls, ceilings and floors caused an emission of asbestos.

During firefighting efforts, power was cut to the bank, causing a basement sump pump to stop.

"When the basement flooded, E. coli bacteria in the sewage was released into the water in the basement," according to court documents. "The E. coli bacteria subsequently grew and spread throughout the bank building through the water that had saturated the walls, ceilings and floors."

Opening remarks were given Monday and witnesses began testifying.

Irvin Nodland, an attorney representing Biggs, said his client had 11 offices on the bank's east end, some of which contained art, coin collections, $12,000, electronic equipment, furniture and confidential business records spanning 30 years.

After the fire, Biggs wanted to gather his belongings, but was told no one could enter the structure and that his property would be safe and secure, Nodland said.

Biggs was then advised the bank's locks had been changed and he would no longer be able to gain access, Nodland said.

Biggs' lease with Wells Fargo was canceled Oct. 15, 2007, Nodland said.

On Oct. 19, 2007, Biggs received a call from Daryl Tabor, the bank branch's president, asking Biggs to go to the property with his keys where he was then escorted to his office space and asked to leave all the doors open, Nodland said.

"When they got up there, Mr. Biggs used it as an occasion to do a walk-through of all 11 offices and he will testify to you there was no smoke, there was no smell, there was no water damage, there was no fire damage," Nodland said. "Everything appeared to be as he left it. There was no missing property."

On Oct. 26, 2007, Biggs was allowed what would be his final entry into the building as the following day he received a phone call saying all his property had been removed and placed in U-Haul trailers in the parking lot, Nodland said.

Biggs is slated to testify about his property's condition, that it appeared to have been "treated as total garbage," and was not salvageable, Nodland said.

"A great deal of property was actually missing, it wasn't even there," Nodland said, adding among missing items were safes, electronic equipment and $12,000.

Nodland said bank officials claimed the property was treated as such because it had been contaminated with E.coli and asbestos.

"It didn't need to be destroyed, it didn't need to be treated as garbage," Nodland said.

At the end of his opening statement, Nodland said the jury will be asked to make a monetary award to Biggs for the value of his property.

Lawrence Klemin, an attorney representing defendant Wells Fargo, said a month prior to the fire, said Wells Fargo hired Nova Consulting Group, Inc., a Minnesota-based environmental consulting firm, to inspect the building.

Klemin said it was found that E.coli had made its way into Biggs' office and some items had to be destroyed due to contamination.

Biggs' lease had a provision to carry insurance on all his property which he had done until about a month prior to the fire, Klemin said.

A second provision on waived both the bank and Biggs' from filing suit for loss or damage for anything not covered by insurance as required by the lease, Klemin said.

The trial is scheduled to last all week.

While it is unclear when renovations will be completed, City Administrator Shawn Kessel, said he toured the building last week and significant progress in restoration efforts is being made.

"All of the first and second floors are studded out," Kessel said. "They are focusing the majority of their attention to these floors."

Work is also being done on a third and fourth level.

"There was progress there as well but not near the level of progress on the first two," Kessel said.

The building's outside will also be receiving some work in the near future, weather permitting.

In other City Commission business:

* An increase in septic disposal fees was approved, to move from $2 per ton to $15 per 1,000 gallons.

* Final plats for two subdivisions, the Lyons Subdivision and the KLD Subdivision, were tabled until concerns with annexation can be decided.

* Changes to the city's defined benefit plan, a pension plan for retiring employees, will be discussed at the July 6 City Commission meeting. Previously, those on the defined benefit plan were able to choose a lump sum payout, but it has been suggested that change to nine yearly payments.