Arcadia Bluffs saga continues

Golf Course News, Nov 2001 by Overbeck, Andrew

MANISTEE, Mich. - One of the court battles surrounding the 1998 landslide damage at Arcadia Bluffs Golf Club came to a close, for now, in late August.

The club's developers, RVP, sued golf course builder Furness Golf Construction for breach of contract and was seeking more than $4 million in repair costs and lost profits as a result of the Sept. 1998 storm that triggered massive landslides, damaging the course and dumping dirt and sand into Lake Michigan.

The seven-week trial wrapped up Aug. 24, with the jury rejecting RVP's claim that Furness was responsible for the damage. Additionally, the jury ordered RVP to pay the more than $500,000 that it still owes Furness. However, according to RVP's lawyer Craig Lubben, an appeal by the company is likely.

BREACH OF CONTRACT?

During the trial, RVP asserted that Furness breached its contract by covering all drainage inlets with silt covers during construction, thereby preventing the installed drainage system from handling storm runoff.

Both golf course architect Warren Henderson, formerly of Rick Smith Golf Course Design, and former golf course builder Paul Clute testified against Furness.

Henderson testified that he had approved of the inlet treatment, but that in hindsight he thought Furness' negligence caused the damage. Clute testified that if Furness covered the inlet pipes during construction he should have also armored the back side of drainage swale berms with plastic sheeting or concrete.

Furness' lawyer, Mark Verwys contended that Furness followed standard construction procedures by covering the inlet pipes and that the drainage system designed by Exxel Engineering was deficient.

Following the damage, the Michigan Department of Environmental Quality (MDEQ) forced RVP to make improvements to the existing system.

"We did what we were told to do in the field by the engineer and the architect," said Timothy Furness. "The jury decided that the blame fell on RVP and it's engineer and architect."

Furness believes the jury's decision exonerates his company. "If this had gone against us it would have put us out of business," he said. "But we were always confident that we had done nothing wrong."

AN APPEAL IN THE WORKS?

RVP's lawyer Craig Lubben is planning to file a post trial motion to have the jury's finding set aside by the judge.

"The act of God is an affirmative defense which means it has to be plead and proved by the party asserting it," said Lubben. "In this case, they did not plead that act of God was one of their defenses."

According to Lubben, the next step will be to go back to the judge and ask him to correct mistakes made by the jury. "I anticipate that we will be doing that," he said. "First the judgement has to be entered and then we will file a motion to set it aside. As of now, however, the judgement has not been filed and a hearing date has not been set."

Lubben said RVP is still intent in recovering repair costs and that it has no intention of paying Furness' outstanding fees.

YET ANOTHER LAWSUIT

RVP is also being sued by the MDEQ. The department originally alleged that RVP violated its soil erosion and control permit, but is now seeking damages under a Michigan law that forbids the dumping of toxic substances into Lake Michigan.

Lubben said that case is now in the discovery phase and is scheduled for trial later in the year.