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United States v. Board of Hamilton County Commissioners

United States District Court, S.D. Ohio, Western Division

May 23, 2017

UNITED STATES OF AMERICA, et al., Plaintiffs,

          Barrett, J.


          Karen L. Litkovitz, Magistrate Judge United States District Court

         This matter is before the Court on the Request for Review of the denial of a Sewer Backup ("SBU") claim by James and Sharell Clark (Doc. 843) and the response of the Metropolitan Sewer District of Greater Cincinnati ("MSD") (Doc. 878). On May 15, 2017, the Court held a hearing on Mr. and Mrs. Clark's request for review of the denial of their SBU claim.

         Mr. and Mrs. Clark's request for review is filed under the Sewer Backup[1] program (formerly known as the Water-in-Basement [WIB] Claims Process Plan) (Doc. 131, Consent Decree, Exhibit 8). The Plan states in relevant part:

Subject to the requirements of this Plan, occupants who incur damages as a result of the backup of wastewater into buildings due to inadequate capacity in MSD's Sewer System (both the combined and the sanitary portions) can recover those damages. This plan also provides a means for occupants to recover damages arising from backups that are the result of MSD's negligent maintenance, destruction, operation or upkeep of the Sewer System. The Claims Process is not intended to address water in buildings caused by overland flooding not emanating from MSD's Sewer Systems or caused by blockages in occupants' own lateral sewer lines.

(Id. at 1). In determining the cause of SBU, MSD must exercise its good faith reasonable engineering judgment and consider the following non-exclusive factors: amount of precipitation, property SBU history, condition of the sewer system in the neighborhood, results of a visual inspection of the neighborhood to look for signs of overland flooding, neighborhood SBU history, capacity of nearby public sewer lines, and topography. (Doc. 131, Consent Decree, Ex. 8 at 2). Damages arising from basement backups for which MSD is responsible are limited to documented real and personal property. Id. Homeowners who are dissatisfied with MSD's disposition of a claim under the SBU program may request review of the decision by the Magistrate Judge, whose decision is binding and not subject to any further judicial review. (Docs. 154, 190).

         I. Background

         On August 28, 2016, a "100-year" rain event caused extensive overland flooding and backup to MSD's sewer system.[2] MSD states that more than 5.4 inches of rain fell in a concentrated area in 2.5 hours with a peak intensity rate of over 5 inches per hour. Flash flooding was evident and the level of the storm "vastly exceeded the abilities of the existing combined sewers, which were not designed to receive and convey waters from a storm more intense than a 10-year recurrence interval." (Doc. 878 at 1).

         James and Sharell Clark are the owners of the property located at 1731 Avonlea Avenue, Cincinnati, Ohio. The Clarks experienced flooding at their property from the August 2016 rain event and sustained damage to their personal and real property. The Clarks made a claim to MSD under the SBU program for $87, 249.00 in compensation for the losses they sustained. MSD's adjuster evaluated the Clarks' claim submittal and, in compliance with Ohio Rev. Code § 2744.05(B)(1), deducted the $5, 250.00 they received from their insurance carrier from the calculated total damages. MSD's adjuster valuated the real and personal property loss of the building and its contents at $12, 719.57. (Doc. 878-5 at 5-6). MSD offered the Clarks this amount in settlement of their claim. The Clarks rejected the offer and filed this appeal.

         At the hearing, Mrs. Clark testified that when she discovered the basement flooding, she observed items floating in several feet of water in her basement. She also testified that she could observe signs of sewer discharge in the laundry tub. Mrs. Clark testified that their basement area is their living area and they sustained extensive damage to furniture, appliances, and other items in the basement and garage.

         Mike Pittinger from MSD testified that there "is no question" that this particular rain event exceeded the capacity of MSD's combined storm and sanitary sewer in the affected area. He explained that when the volume of sewer contents exceeds the capacity of the sewer, there is a direct backup of sewage in manholes and connections to sewer lines which can result in SBU into people's homes. Mr. Pittinger testified that "in this particular case ... I don't think there's any doubt that that occurred." He further testified that additional factors contributed to the SBU in the Clarks' residence, including the location of the Clarks' house in relation to the trunk sewer, overland flooding, and the natural drainage of the land where overland flow follows a natural water course.

         II. Whether the Consent Decree requires MSD to compensate for damages arising from severe wet weather events.

         In this case, MSD contends that it is not required to reimburse the Clarks for damages caused by this severe wet weather event under the Consent Decree. MSD attributes the losses sustained by the Clarks to "the torrential rainfall their neighborhood experienced on August 28, 2016." (Doc. 878 at 2). MSD states:

With a storm of this severity, it is undeniable that the sewer system was overwhelmed and did back up but it is impossible to definitively determine if and to what extent which sewers backed up or overflowed. It is also certain that flood waters from the storm entered the Clarks' home. The backyard of the Clarks' property sits at a low point in the neighborhood; it is paved for parking and a recessed driveway and garage are in the rear of the home. These conditions would cause overland ...

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