United States District Court, S.D. Ohio, Western Division
ORDER RE: REQUEST FOR REVIEW BY DOUG HUFF
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 Doug
Huff (Doc. 902) and the Metropolitan Sewer District of
Greater Cincinnati ("MSD")'s response thereto
(Doc. 982). On August 9, 2017, the Court held a hearing on
Mr. Huffs request for review. (Doc. 1039).
Huffs request for review is filed under the Sewer Back
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
(Doc. 131, Consent Decree, Exhibit 8 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, Exhibit 8 at 2). Damages arising from basement
backups for which MSD is responsible are limited to
documented real and personal property. Id.
Huff is the owner of the property located at 3404 Brotherton
Road, Cincinnati, Ohio. He seeks compensation for personal
property loss sustained on March 12, 2015 due to alleged
sewer backup into his basement. (Doc. 902). After discovering
the backup, Mr. Huff hired a plumber who determined there was
a blockage in the private lateral sewer line located in the
public right-of-way. MSD was notified, investigated, found a
break in the lateral line, and performed an emergency repair
of the line the following day. Mr. Huff states that once MSD
repaired the broken pipe, he experienced no further problems
with water backing up into his basement. On February 11,
2017, Mr. Huff filed an SBU claim with MSD. MSD denied Mr.
Huffs claim, finding that the backup of water into his
property was the result of a blockage in the private building
sewer line and not a problem in the public sewer. (Doc.
982-4). Mr. Huff then filed this appeal.
the Consent Decree, property owners may recover damages to
personal or real property arising from "backup of
wastewater into buildings due to inadequate capacity in
MSD's Sewer System" and "damages arising from
backups that are the result of MSD's negligent
maintenance, destruction, operation or upkeep of the Sewer
System." (Doc. 131, Consent Decree, Exhibit 8 at 1).
Property owners are responsible for blockages in the
owner's building lateral sewer lines, which are owned by
the property owner and not MSD. (Id.). However,
where the blockage is in a portion of the owner's
building lateral sewer line that lies in the public street
right-of-way, MSD is generally responsible for the repair.
MSD's Rules and Regulations provide in relevant part:
The owner of the premises served by a sewer shall be
responsible for the maintenance and cleaning of the building
sewer from the building to the point of connection with the
public local sewer. Repair and reconstruction of the
building sewer in a public street right-of-way or
within the specified width of a recorded public easement
shall be the responsibility of the District except as
follows. ... It shall be the responsibility of the owner
or his agent to establish, by means of a valid sewer cleaner
contractor's receipt, that such a repair or
reconstruction is the responsibility of the District. The
District shall have the right to verify the sewer
cleaner's finding prior to beginning repair or
reconstruction.. . .
(Doc. 580, Ex. C, Section 2008, MSD Rules and Regulations)
(emphasis added). MSD undertakes repairs in public
right-of-way laterals to ensure proper, safe, and consistent
repairs. Where MSD receives notice from a property owner that
repair or reconstruction of the lateral in the public
right-of-way is necessary, MSD is required to make the
repairs in a timely manner. MSD alleges it is not responsible
for sewer repair or backups resulting from a broken lateral
in the public right-of-way until such time as it receives
notice from the property owner. (Doc. 982 at 2).
the SBU program governed by the Consent Decree, homeowners
who seek review of the denial of an SBU claim bear the burden
of proof of showing that the backup of wastewater into their
property was due to inadequate capacity in MSD's sewer
system and not due to blockages in the occupant's own
lateral sewer lines. (Doc. 131, Consent Decree, Exhibit 8 at
1). Here, Mr. Huff has not shown that the wastewater backup
into his basement was caused by inadequate capacity in
MSD's sewer system. Mr. Huff does not dispute MSD's
finding that the backup was caused by a blockage and break in
the private sewer lateral line in the public right-of-way.
MSD performed the repair work in a timely manner once it was
notified by Mr. Huff, and there have been no subsequent
blockages. Because Mr. Huff owns and is responsible
for maintaining his private building lateral sewer line,
including the portion in the public right-of-way, MSD's
denial of his claim was correct.
Mr. Huffs ...