22ND JUDICIAL DISTRICT COURT FOR THE PARISH …

1 1 22nd JUDICIAL DISTRICT COURT FOR THE PARISH OF ST. tammany STATE OF LOUISIANA NO. 2008-10737 C/W 2008-11536 DIVISION "I" JANET SHEA WIFE OF/AND ALPHONSE SHEA v. SUN CONSTRUCTION, ; SUNRISE CONSTRUCTION AND DEVELOPMENT, ; PENN MILL LAKES, ; COOPER ENGINEERING, INC., A PROFESSIONAL ENGINEERING CORPORATION and PATRICIA GRANT WIFE OF/AND RICHARD GRANT, ET AL., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED v. SUN CONSTRUCTION, , PENN MILL LAKES, , SUNRISE CONSTRUCTION AND DEVELOPMENT, , AND COOPER ENGINEERING, INC., A PROFESSIONAL ENGINEERING CORPORATION, FILED: _____ _____DEPUTY CLERK THIRD AMENDED CLASS ACTION PETITION FOR DAMAGES JOINING JAMES (RED) THOMPSON, JEAN THIBODEAUX, INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, ZURICH NORTH AMERICA/MARYLAND CASUALTY COMPANY, RESILIRE ENGINEERING AND CONSULTING, LLCAND LEON LOWE AND SONS, INC.

2 AS ADDITIONAL DEFENDANTS Plaintiffs, Patricia Grant, individually and as Independent Executrix of the Succession of Richard Grant; Deborah Lascari, individually and as Testamentary Executrix of Daniel John Lascari, Sr.; Gayle and James Ayo; Lynell and Alvin Rowan; Sheron and Vernon Sprawls; Diane and Johnny White; and JoAnn and William Youngblood, appearing through undersigned counsel, all persons of the full age of majority and all present or former residents and domiciliaries of St. tammany PARISH , Louisiana, who file this petition on their own behalf and on behalf of all persons similarly situated, respectfully represent that they desire to join as additional defendants all persons, parties, and insurers named and identified in Paragraph 4, infra., and to substitute the following for the allegations of the original, first amended, and second amended petitions: 1.

3 Plaintiffs bring this action because of damages past, present, and future caused by inadequate drainage, flooding, loss of resale value, the likelihood of excessive flood insurance premiums, and other problems described hereinafter and arising from their present or former ownership of property in the Penn Mill Lakes Subdivision ( Penn Mill Lakes ). These damages were caused, inter alia, by the following: 2 a. Failure to protect plaintiffs from the back flooding from the Little Tchefuncte River and Horse Branch that was known to Lawrence A. Kornman ( Kornman ), Leroy J. Cooper, ( Cooper ), James A. (Red) Thompson ( Thompson ), and Jean Thibodeaux, ( Thibodeaux ), and known by them to cause the Penn Mill Lakes subdivision applications, unless modified, to violate the PARISH Ordinances that Thompson and Thibodeaux were mandated to uphold, and was intentionally suppressed by said defendants; b.

4 Failure of the STPG1 to enforce and require compliance by Penn Mill Lakes, ( Penn Mill ), Sun Construction, ( Sun ), and Kornman2 with, inter alia, the St. tammany PARISH Flood Hazard Area Ordinance, PARISH Ordinance Sec. , et seq. ( Flood Ordinances ) and St. tammany PARISH Code of Ordinances Subdivision Regulatory Ordinance No. 499 (Appendix B, Chapter 40) ( Subdivision Regulation Ordinances )3; c. The conspiracy among these defendants and Leroy J. Cooper ( Cooper )4 to deprive the plaintiffs, then potential purchasers of property in Penn Mill Lakes, of compliance by the developer/design defendants with the Subdivision/Flood ordinances, and of the honest services of PARISH Engineer Thibodeaux and of the St. tammany Department of Development/Planning ( Development/-Planning ), and of the informed oversight of the St.

5 tammany PARISH Planning/Zoning Commission ( Planning Commission ); d. Failure to warn the plaintiffs and other potential and actual purchasers of property in Penn Mill Lakes that the property that they were considering purchasing and actually purchased was property that would flood because it was in the flood basin on Little Tchefuncte River and its tributary Horse Branch Creek. 2. The desired and accomplished result of the conspiracy described in 1 and the actions taken in furtherance of this conspiracy was the securing of administrative approval of Penn Mill Lakes by the STPG and the Planning Commission that was necessary for the issuance of development and work permits for the initial and subsequent phases of Penn Mill Lakes. The most damaging consequence of this successful conspiracy has been that Penn Mill Lakes has unnecessarily suffered from the serious flooding problems described hereinafter that would have been avoided or ameliorated had the St.

6 tammany PARISH defendants (STPG, Thompson, and Thibodeaux) required that the developers construct and bear the cost of backwater protection, 1 Thompson, Thidodeaux, and the STPG are sometimes hereinafter referred to as the St. tammany PARISH defendants. 2 Penn Mill, Sun, and Kornman are sometimes hereinafter referred to as the developer defendants. 3 The St. tammany PARISH Flood Hazard Area Ordinance, PARISH Ordinance Sec. , et seq. ( Flood Ordinances ) and St. tammany PARISH Code of Ordinances Subdivision Regulatory Ordinance No. 499 (Appendix B, Chapter 40) ( Subdivision Regulation Ordinances ) are sometimes hereinafter referred to as the Subdivision/-Flood Ordinances. 4 CEI and Cooper are sometimes hereinafter referred to as the design defendants. Penn Mill, Sun, Kornman, CEI, and Cooper are sometimes hereinafter referred to as the developer/design defendants.

7 3 levees, and other measures required by the Subdivision/Flood Ordinances as are described in the March 13, 2003 letter5 from Thibodeaux to Cooper and the May 6, 2009 email from Paul Carroll, STPG drainage 3. These facts ( 1-2) were concealed from the plaintiffs, then prospective and now current and former homeowners of Penn Mill Lakes property. Plaintiffs were deliberately not warned that they would be purchasing property that flooded in a subdivision that now has the reputation of one that floods. Rather this information was intentionally not provided to the plaintiffs. This failure to warn continues to the present as the Penn Mill Lakes web site contains no information as to past or potential flooding and, on information and belief, the past, present, and likely future flooding is not otherwise disclosed. 4.

8 Made defendants herein are: a) SUN CONSTRUCTION, ( Sun ), a limited liability company organized under the laws of the State of Louisiana and doing business in the PARISH of St. tammany , State of Louisiana; b) PENN MILL LAKES, ( Penn Mill ), a limited liability company organized under the laws of Louisiana and doing business in the PARISH of St. tammany , State of Louisiana; c) LAWRENCE A. KORNMAN ( Kornman ), of majority and a resident of this PARISH and State. At all times mentioned herein, Kornman was the Manager of Sun and Penn Mill; d) CLARENDON AMERICA INSURANCE COMPANY ( Clarendon ), a New Jersey corporation that has its administrative offices in New York. Clarendon underwrites commercial liability insurance; e) INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, a foreign insurance company affiliated with AIG which underwrites insurance, including both primary and excess commercial liability insurance; 5 CEI1-0871-0872; 0975-0976.

9 Copy to Earl Magner. This was also Exhibit 1 to the Second Amended Petition, Letter of March 13, 2003 from Jean M. Thibodeaux to Leroy J. Cooper, STP1-000241-42. 6 STP1000015. 4 f) COOPER ENGINEERING, INC., A PROFESSIONAL ENGINEERING CORPORATION ( CEI ), a Louisiana corporation licensed and doing business in the PARISH of St. tammany , State of Louisiana, and LEROY J. COOPER ( Cooper ), its former owner. Cooper was succeeded in the ownership of CEI by Joshua R. Norman, who changed the name of CEI to Resilire Engineering and Consulting, LLC, whose purchase and continuation of the business of CEI results in successor liability for fault of CEI and Cooper and the damage caused thereby, so that Resilire Engineering and Consulting, LLC is also made a defendant herein; g) RESILIRE ENGINEERING AND CONSULTING, LLC, a Louisiana limited liability company, authorized to do and doing business in the State of Louisiana; the successor of Cooper Engineering, Inc.

10 H) ZURICH NORTH AMERICA/-MARYLAND CASUALTY COMPANY, a foreign insurer authorized to and conducting business in Louisiana. This defendant underwrites general liability insurance; i) LEON LOWE & SONS, INC. ( Lowe ), is a Louisiana corporation domiciled and with its principal place of business in this PARISH and State; j) ST. tammany PARISH GOVERNMENT ( STPG ), a public entity which is vicariously liable for the intentional/negligent acts of its employees, officers, and agents in aiding and abetting the permitting of an obviously poorly drained subdivision; k) JAMES A. (RED) THOMPSON ( Thompson ), of majority and a resident of this PARISH and State. Thompson is and was the PARISH councilman for the geographic area that includes Penn Mill Lakes; l) JEAN M. THIBODEAUX, ( Thibodeaux ) of majority and a resident of this PARISH and State.