United States District Court, S.D. Ohio, Western Division
UNITED STATES OF AMERICA, et a. Plaintiffs,
BOARD OF HAMILTON COUNTY COMMISSIONERS, et al., Defendants.
ORDER RE: REQUEST FOR REVIEW BY JAMES BUSICK
L. Litkovitz, Magistrate Judge.
matter is before the Court on the Request for Review of the
denial of a Sewer Backup ("SBU") claim by James
Busick (Doc. 886) and the response of the Metropolitan Sewer
District of Greater Cincinnati ("MSD") (Doc. 999).
Mr. Busick requests review of MSD's decision in his SBU
claim without a hearing. (Doc. 886 at 2).
Busick'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).
initial matter, MSD does not dispute that Mr. Busick's
property experienced an SBU that is subject to the claims
process under the Consent Decree. (Doc. 999 at 1). The only
issues in this case are: (1) the amount of compensation Mr.
Busick is entitled to for his property loss, and (2) whether
MSD may request, as a condition of compensation under the
claims process, that homeowners take reasonable precautions
to mitigate future SBU damages, such as refraining from
storing personal property below a previously documented high
water line for two years.
Busick is the owner of the property located at 1759 Avonlea
Avenue, Cincinnati, Ohio. On August 28, 2016, Mr. Busick
experienced an SBU incident in his basement which resulted in
damage to his personal property. Mr. Busick made a claim for
damages in the amount of $16, 104.88 to MSD for the sewer
backup. MSD's adjuster, Tenco Services, Inc., valuated
the personal property loss at $5, 155.94. (Doc. 999-3 at 4).
In compliance with Ohio Rev. Code § 2744.05(B)(1), the
adjuster deducted the $2, 501.40 Mr. Busick received from his
insurance carrier from the calculated total damages, leaving
a balance of $2, 654.54. MSD offered Mr. Busick this amount
in settlement of his claim. Mr. Busick rejected the offer
and, in an effort to expedite the settlement of this claim,
MSD increased the offer by $1, 000.00, the amount of Mr.
Busick's insurance deductible. (Doc. 999 at 3). Mr.
Busick rejected the revised offer and filed this appeal.
Busick disputes the amount of compensation MSD has offered
and seeks $16, 104.88 in damages. With the exception of the
Vintage Sports Illustrated magazines, Mr. Busick's claim
for damages in the amount of $16, 104.88 is based on the
original purchase price of the items. (Doc. 886 at 9-12).
Damages for SBU claims are determined based on the market
value of personal property as of the date of loss
(the depreciated value) and not on the original purchase
price or cost of replacement. MSD properly valuated Mr.
Busick's personal property at the depreciated value based
on the age of the items. With respect to the Vintage Sports
Illustrated magazines, the Court's own research indicates
the average market value of Sports Illustrated magazines
dated between 1970 and 1980 (the dates of Mr. Busick's
magazines) is between $2.00 and $3.00 per magazine. The Court
adopts as fair and reasonable the MSD's adjuster's
estimate for the Vintage Sports Illustrated magazines.
Finally, it appears MSD's adjuster inadvertently omitted
compensation for the Beaded Wedding Sash and the X Box Elite
360 gaming system. The Court awards $39.00 for the wedding
sash ($130.00 purchase price depreciated by 70%) and $99.75
for the X Box gaming system ($399.00 purchase price
depreciated by 75%). Mr. Busick is also entitled to
reimbursement for his insurance deductible of $ 1, 000.00.
extent Mr. Busick also seek damages for cleaning supplies,
these items have already been covered in the estimate
provided by his insurance carrier. See Doc. 999-2 at
14. Therefore, the Court declines to award further
compensation for these items.
respect to the future claims mitigation language included in
MSD's offer letter, this language is taken directly from
the Consent Decree at Exhibit 8, Section V. In a previous
case concerning this same issue, MSD's attorney
emphasized that the language requires "reasonable"
mitigation measures. In that case, where the claimant's
basement was used as a living area, such reasonable
precautions would include, for example, not installing
expensive hard wood flooring that could warp in the event of
a subsequent SBU event and not storing expensive
"collectibles" on the basement floor. (Doc. 942).
MSD requests that homeowners like Mr. Busick take reasonable
precautions to mitigate any future losses in the event of an
SBU, which MSD would take into consideration in the event of
a subsequent SBU claim. The Court finds the future claims
mitigation language included in MSD's offer letter to be
consistent with the Consent Decree, which is binding upon all
parties and the Court in this claims review process.
conclusion, the Court awards $3, 793.29 ($2, 654.54 for
personal property loss assessed by MSD plus $39.00 for the
wedding sash, $99.75 for the X Box gaming system, and $1,
000.00 for the insurance deductible) to Mr. Busick for the
damages sustained in this case.