United States v. Board of Hamilton County Commissioners

          BARRETT, J.

          ORDER RE: REQUEST FOR REVIEW BY DAVID GUERDAN

          KAREN L. LITKOVITZ, UNITED STATES DISTRICT MAGISTRATE JUDGE.

         This matter is before the Court on the Request for Review of the denial of a Sewer Backup ("SBU") claim by David Guerdan (Doc. 857) and the response of the Metropolitan Sewer District of Greater Cincinnati ("MSD") (Doc. 930). On June 13, 2017, the Court held a hearing on Mr. Guerdan's request for review of the denial of his SBU claim.

         Mr. Guerdan'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).

         As an initial matter, the Court notes that there is no dispute that the cause of damage to Mr. Guerdan's property was an MSD sewer backup. The only issue in this case is the amount of compensation for his property loss.

         Mr. Guerdan rents the home located at 4518 Camberwell Road, Cincinnati, Ohio. On August 28, 2016, Mr. Guerdan experienced an SBU incident in his basement which resulted in damage to his personal property. Mr. Guerdan made a claim for damages to MSD for the August 2016 sewer backup into his basement. An adjuster evaluated Mr. Guerdan's claim submittal and, in compliance with Ohio Rev. Code § 2744.05(B)(1), deducted the $3, 974.00 he received from his insurance carrier from the calculated total damages. MSD's adjuster valuated the personal property loss at $3, 271.45, after deducting the insurance carrier's payment. (Doc. 930-3 at 4-5). MSD offered Mr. Guerdan this amount in settlement of his claim. Mr. Guerdan rejected the offer and filed this appeal.

         At the hearing of this matter, Mr. Guerdan testified that he disputed MSD's valuation of his personal property, particularly with respect to recreational items, his military uniforms, baby items, and an air purifier and humidifier. Mr. Guerdan testified that he is an active duty army service member and wearing a military uniform is a requirement of his military employment. He disputes MSD's depreciation of his claim for four military uniforms and testified that one cannot obtain a replacement uniform on sites such as Craig's List or eBay. Mr. Guerdan also disputes MSD's valuation of personal items like nursing and pregnancy pillows, and he disputes MSD's depreciation of many of his other items of personal property that were lost in the SBU. In his written request for review, Mr. Guerdan additionally seeks damages for:

1. Time taken off from work to personally remove sewage water infested items from his garage and basement: $800.

2. Time spent documenting damages, filling out and submitting paperwork, coordinating with ServPro cleaning company, and coordinating with MSD and his insurance adjusters: $550.

3. The irreplaceable hard copy photos and childhood keepsakes that were destroyed: $450.

4. The files on computers that were lost (hundreds of non-duplicated pictures): $500.

5. His excessively high September utility bill, which was $150 over the usual amount due to ServPro running multiple industrial sized dehumidifiers for 72 hours ...