United States District Court, S.D. Ohio, Western Division
ORDER RE: REQUEST FOR REVIEW BY GRETCHEN
L. Litkovitz, Magistrate Judge United States District Court
matter is before the Court on the Request for Review of the
denial of a Sewer Back Up ("SBU") claim by Gretchen
Aichele (Doc. 856), the Metropolitan Sewer District of
Greater Cincinnati ("MSD")'s response thereto
(Doc. 968), and MSD's supplemental response to the
Request for Review (Doc. 998). On June 27, 2017, the Court
held a hearing on Ms. Aichele's request for review at
which Ms. Aichele and Tom Fronk, MSD Engineering Technical
Supervisor, testified and documentary evidence was submitted.
Aichele'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).
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).
Aichele is the owner of the property located at 7040
Wyandotte Drive, Cincinnati, Ohio. She seeks compensation for
personal property loss sustained on August 17, 2016, due to
alleged sewer backup into her basement. (Doc. 856). On
November 2, 2016, Ms. Aichele filed an SBU claim with MSD.
MSD denied the claim because "MSD was denied access to
[Ms. Aichele's] home'' in contravention of
program rules. (Doc. 856, Ex. A). MSD also determined that
the damage to Ms. Aichele's property did not result from
a backup of MSD's sanitary sewer. Ms. Aichele disagreed
and filed this appeal. (Id.)
Aichele testified that on the morning of August 17, 2016, she
discovered her basement had flooded. There was approximately
three inches of water in the basement and it smelled like raw
sewage. She presented photographs of her basement floor after
the water receded, which appear to show human waste on the
basement floor in the vicinity of the floor drain. (Aichele
Exs. 1-3). She contacted MSD, but did not receive a response.
In the evening, Ms. Aichele saw an MSD truck on her street
and approached the MSD worker in the truck. She requested
that he observe the condition of her basement, but he
refused, saying he was only there to check the manhole. Ms.
Aichele testified that she never received a call back from
MSD and no one from MSD ever asked to enter her home. Ms.
Aichele hired Brock Restoration to clean and sanitize her
basement. A letter dated September 27, 2016 from Brock
Restoration states that its mitigation technicians removed
carpet and padding from the residence "due to being
affected by Category 3 water (water which is unsanitary
according to the IICRC standards).1' (Doc. 856 at 22).
Ms. Aichele states that she had never experienced flooding in
her basement since moving to her home in 2003. She submitted
statements from her insurance company and plumber confirming
that the property had not flooded prior to August 2016. (Doc.
856, Exs. B, C). Ms. Aichele also testified that she was
aware that two homes on Pickway Drive, an intersecting street
to Wyandotte Drive, suffered sewer backups on August 17, 2016
Aichele testified that she experienced another basement
backup on March 1, 2017. She contacted MSD, which sent a
cleaning crew to clean and sanitize her basement. Ms. Aichele
states that the two incidents of backup were similar in that
she observed numerous cleaning contractor vehicles in her
neighborhood after both incidents, indicating the backup to
her property was not an isolated incident.
meantime, Ms. Aichele hired a plumber to investigate the
cause of her basement backup. The plumbing invoice states
that on March 7, 2017, the plumber checked the floor drain
with a hose and there was no backup. He ran a camera from the
basement floor cleanout plug to the public sewer. He reported
that the "sewer was in good shape to the water tap"
and "the public sewer was almost all the way full of
water and looked like it was close to backing into [the]
private part of sewer." (Doc. 856 at 33). The plumber
recorded his video investigation on a flash drive, which Ms.
Aichele submitted as evidence.
Aichele testified that she experienced another basement
backup on June 23, 2017. However, as of the date of the
hearing, she had not made claims to MSD for the March or June
2017 backups, stating that she had already lost all of her
property in the August 2016 backup. With respect to the
August 2016 backup, Ms. Aichele seeks reimbursement for
cleaning costs which were not covered by her insurance,
carpet replacement, plumber costs related to the relighting
of her water heater, and couch replacement.
presented evidence that on August 17, 2016, Ms. Aichele
reported her property had experienced flooding. MSD responded
the same day to investigate the cause of the flooding. MSD
reported that Ms. Aichele's property was serviced by a
separate MSD sanitary sewer system and that Green Township
maintains the storm sewer system. MSD crews determined that
the mainline sewer was open and running, and a check of the
manholes upstream and downstream from the property showed no
evidence that the public sewer had surcharged. The MSD crew
also noted there was no evidence of overland flooding and
that the homeowner would not grant them access to her home at
that time. (Doc. 968, Ex. A).
Fronk testified that sewer surcharges are easier to detect
with a sanitary only sewer system like Ms. Aichele's (as
opposed to a combined sanitary and storm water system) given
the heavier concentration of waste and residue visible on the
walls and step ladder of the manhole following a surcharge.
He testified that there was a five foot differential between
the elevation of Ms. Aichele's home and the manhole rim
and that the sanitary portion would have had to surcharge
approximately five feet in the manhole in order to cause a
backup into her home. He also testified that the Category 3
water reported by the cleaning company does not necessarily
mean the backup was from the MSD sanitary sewer. Mr. Fronk
testified that water that backs up in a homeowner's
building lateral sewer line and exits the floor drain is
classified as Category 3 water under Institute of Inspection
Cleaning and Restoration Certification (IICRC) Standards even
if the backup is caused by sources other than the public
sewer system, such as floodwater and groundwater.
(See Doc. 968, Ex. D).
states that there were no other sewer backups reported on Ms.
Aichele's street on August 17, 2016; her property does
not have a history of SBUs; and there are no known capacity
issues with the sanitary sewer at this location. MSD also
contends the plumber's video and report from March 2017
are not relevant to the conditions that existed on August 17,
2016, some seven months earlier, due to the lapse of time and
limited nature of the inspection. MSD notes that the video
appears to inspect only the portion of the building sewer
from the basement floor cleanout located at the front of the
building out to the public sanitary sewer, and the video does
not show the internal plumbing connections or the floor
drain; therefore, the conditions of these connections and the
floor drain are not disclosed. When MSD technical staff
reviewed the video, they noted there were no apparent
structural defects which would contribute to a sewer backup.
But they also ...