Heather Isringhausen Gvillo Feb. 23, 2016, 7:31am


Several defendants associated with the Keystone Pipeline argue that a landowner cannot collect economic damages in her complaint alleging her farmland yields fewer crops after pipeline work was done on her property.

The estate of Louise Downen, through her power of attorney Timothy J. Downen, filed a lawsuit on Sept. 29 against TransCanada, Sheehan Pipeline, N&W Horizontal Boring and ERB Equipment Company of Illinois, Inc.

According to the complaint, the parties had agreed to allow the pipeline’s installation on the plaintiff’s land on March 1, 2009. After the pipeline was installed, TransCanada and its co-defendants allegedly failed to properly replace topsoil and remediate the land as required by the Illinois Commerce Commission. As a result, the land allegedly yields fewer crops, is subject to erosion and is damaged for farming, the suit states.

ERB filed a motion to dismiss the complaint on Nov. 3 through attorneys Donald Ohl and Heather Mueller-Jones of Knapp, Ohl & Green in Edwardsville, arguing that it is barred by the statute of limitations, among other allegations.

The defendant also argues that the plaintiff failed to allege that it owed a duty to Downen and failed to allege that it breached any alleged duty in a negligent way.

Further, the defendant argues that the plaintiff cannot recover for economic loss under tort theories.

“In order to be recoverable under the economic loss rule, Plaintiff must have sustained property damage from a sudden or dangerous occurrence. There are no allegations of a sudden or dangerous occurrence, only that due to work performed on the subject premises there is a reduction in crop yield, a pond that holds less water and land cannot be tilled,” the motion states.

ERB also filed a request to admit against the plaintiff, asking the plaintiff to admit that she and her representatives did not lease or rent any equipment from the defendant, they did not have any communications with the defendant and was not a party to the March 2009 agreement, among others.

The plaintiff objected, arguing that Downen is without sufficient knowledge to answer the requests.

ERB filed a motion to deem facts admitted on Jan. 25, arguing that the plaintiff must make a reasonable effort to answer the requests.

Sheehan Pipeline filed a motion to dismiss on Dec. 7 through attorneys John Cunningham and Denise Baker-Seal of Brown & James in Belleville. The defendant argues that the Moorman Doctrine bars recovery, which requires a showing of harm above and beyond a plaintiff’s disappointed expectations.

“The remedy for economic loss, resulting from disappointed expectations due to deterioration, internal breakdown or other nonaccidental cause, lies in contract,” the motion states.

“Plaintiff alleges that his damages were purportedly caused by failure to install the pipeline in a proper manner, and failure to remediate the land after the installation, rather than a sudden and dangerous event. Thus, Plaintiff’s claims are based upon disappointed commercial expectations that are unavailable under tort theories,” it continues.

The defendant also alleges the plaintiff failed to make sufficient claims for fraud by relying on statements that were made after the agreement was signed and misrepresenting statements about future events or promises of future conduct.

Sheehan Pipe Line filed a motion to transfer for forum non conveniens on Feb. 3, seeking to transfer the case to Bond County. It argues that Bond County is more convenient for the parties.

The defendant also claims the plaintiff “failed to allege any meaningful connection” to St. Clair County.

Sheehan says Bond County is more convenient because it is the origin of the litigation and has the most significant relationship to the case.

“Here, plaintiff chose to file his lawsuit in a forum unrelated to the location of the operative events of the complaint and outside his county of residence,” the motion states.

N&W Horizontal Boring also filed a motion to dismiss on Dec. 8 through attorneys Christopher Bortz and Lucas Dalton of Neville, Richards & Wuller in Belleville. The defendant argues that it did not perform any work on the plaintiff’s land and, therefore, does not owe a duty to the plaintiff.

The defendant was voluntarily dismissed by the plaintiff on Jan. 21.

Associate Judge Randall Kelley scheduled a status conference for June 13 at 8:30 a.m.

The plaintiffs seek damages of more than $50,000, plus court costs.

Downen is represented by Grey Chatham Jr. of Chatham & Baricevic of Belleville.

St. Clair County Circuit Court case number 15-L-558

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