United States District Court, S.D. Ohio, Western Division
ORDER RE: REQUEST FOR REVIEW BY PHILLIP G.
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 Phillip
G. Cargile (Doc. 898) and the Metropolitan Sewer District of
Greater Cincinnati ("MSD")'s response thereto
(Doc. 987). Mr. Cargile requests review of MSD's decision
on his SBU claim without a hearing. (Doc. 898 at 3).
Cargile'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 System
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).
Cargile is the owner of the property located at 5857 Rhode
Island Avenue, Cincinnati, Ohio. He seeks compensation for
personal property loss sustained on July 8, 2016 and August
28, 2016, due to alleged sewer backup into his basement.
(Doc. 898). On November 14, 2016, Mr. Cargile filed an SBU
claim with MSD. MSD denied the July 8, 2016 claim because the
alleged sewer backup on that date was never reported to MSD.
MSD denied Mr. Cargile's August 28, 2016 claim, finding
that Mr. Cargile failed to report this SBU within a
reasonable time and the cause of the backup was an issue with
the private building sewer and not any failure for which MSD
is responsible. Mr. Cargile disagreed and filed this appeal.
Cargile states that he called MSD following the August 28,
2016 backup. He states he received a busy signal on numerous
occasions and when he did get through, he left several
messages for MSD to contact him. He states he was unable to
speak to an MSD representative until October 2016, when he
received a work order number. DH Storm Team, an MSD
contractor, was dispatched to his property and performed
cleaning services. Mr. Cargile states that MSD had incorrect
contact information for him on file and MSD is at fault for
the delay in investigating his claim. (Tr. 898 at 5, MSD
email). He seeks reimbursement for the personal items in his
basement that were damaged and for contaminated drywall.
(Doc. 898 at 3).
states that it did not receive a report of a basement backup
from Mr. Cargile on or around July 8, 2016 or August 28,
2016. MSD states that it received a report of a basement
backup from Mr. Cargile on October 18, 2016 and dispatched a
crew to investigate. The MSD crew found the public sewer was
open and running. The building sewer's cleanout (near the
public right-of-way line) had a float level indicator that
did not indicate any surcharging of the public sewer. (Doc.
987-5). MSD staff concluded that the backup was in the main
floor drain and advised Mr. Cargile to contact a plumber.
(Doc. 987, Ex. C). Mr. Cargile was not home at the time and
the crew left information on the door. (Doc. 987-5). On
October 22, 2016, Mr. Cargile reported that the backup had
occurred on August 28, 2016. In response, MSD provided
cleaning services without conducting a field investigation
following the October 22 report from Mr. Cargile.
Cargile's plumber, Help Plumbing and Heating, inspected
his property and made the following findings and
recommendations in its documents provided to Mr. Cargile
dated November 1, 2016:
a) The sewer line from Mr. Cargile's home "exits the
home and goes uphill from the house to the cleanout in the
b) "The second and first floor drains need to go out of
the home above the basement floor."
c) "A sewage ejector pump with a pit needs to be added
in order to remove the sewage from the future bathroom in the
basement and the floor drains. Then a new line will be ran
(sic) from the house to the cleanout in the yard."
(Doc. 987, Ex. D).
Fronk, MSD Engineering Technical Supervisor, investigated Mr.
Cargile's backup claim and determined that Mr.
Cargile's home was built in a manner that did not allow
for sufficient drainage down to the MSD line. He noted that
the "reverse slope" of the building sewer found by
Mr. Cargile's plumber, and not the capacity of MSD's