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Ruling overturned on Kauai dam break claims

By Associated Press

POSTED:
LAST UPDATED: 06:40 a.m. HST, Nov 06, 2013


LIHUE >> Kilauea Irrigation Company is responsible for defending the state against lawsuits brought in the aftermath of a deadly 2006 Kauai dam break, a state appeals court has found.

The state Intermediate Court of Appeals ruling says Kilauea Irrigation has a responsibility to defend claims against the state regarding care and maintenance of the Ka Loko dam and spillway prior to the disaster, the Garden Island reported Tuesday.

Seven people were killed after the dam collapsed and hundreds of gallons of water rushed downhill. Various lawsuits were filed after the break. Some are still pending. Then-primary landowner James Pflueger pleaded no contest to reckless endangering in the criminal case.

The ruling sends the Kilauea case back to Circuit Court. The company didn't file a challenge to the state's appeal.

A permit at the time allowed Kilauea Irrigation to construct, operate, repair and maintain a water transportation system within the Ka Loko ditch right-of-way and the Puu Ka Ele stream. The permit required "due care" regarding public safety and to indemnify the state from claims of damage, injury or death arising from failure to maintain the permit.

A lower court judge had granted a state motion arguing Kilauea Irrigation was obligated to defend the state against allegations of premises or property ownership. But the judge ruled Kilauea Irrigation was not obligated to defend claims that the state was aware the dam was in questionable condition, that the state did not require repair or replacement and that the state did not intervene when the public utility failed to meet inspection obligations.

Deputy State Attorney General Reese Nakamura said the appeals court ruled that under Hawaii law, a court can't both grant in part and deny in part one motion regarding claims in the case.

"The ruling states that Kilauea Irrigation Company has to defend on all claims," Nakamura said.






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