United States District Court, S.D. Ohio, Western Division
ORDER RE: REQUEST FOR REVIEW BY DAVID
L. LITKOVITZ, UNITED STATES DISTRICT MAGISTRATE JUDGE.
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
Guerdan's request for review is Filed under the Sewer
Backup 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
(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).
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.
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.
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 ...