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United States v. Board of Hamilton County Commissioners

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

August 22, 2017

UNITED STATES OF AMERICA, et al., Plaintiffs,
v.
BOARD OF HAMILTON COUNTY COMMISSIONERS, et al., Defendants.

          ORDER RE: REQUEST FOR REVIEW BY PHILLIP G. CARGILE

          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 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).

         Mr. Cargile'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 System 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).

         Mr. 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.

         Mr. 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).

         MSD 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.

         Mr. 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 yard."
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).

         Tom 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 ...


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