United States District Court, S.D. Ohio, Western Division
ORDER RE: REQUEST FOR REVIEW BY JOSEPH FLACK
L. Litkovitz, Magistrate Judge.
matter is before the Court on the Request for Review of the
denial of a Sewer Back Up ("SBU") claim by Joseph
Flack (Doc. 964) and the Metropolitan Sewer District of
Greater Cincinnati ("MSD")'s response thereto
(Doc. 1065). On September 6, 2017, the Court held a hearing
on Mr. Flack's request for review at which Mr. Flack and
Tom Fronk, MSD Engineering Technical Supervisor, testified
and documentary evidence was submitted. (Doc. 1074). MSD and
Mr. Flack also submitted supplemental briefs following the
hearing at the request of the Court. (Docs. 1096, 1116).
Flack'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). 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).
Flack is the owner of the property located at 4503 Sunnyslope
Terrace, Cincinnati, Ohio. He seeks compensation for real and
personal property loss sustained on August 28, 2016, due to
alleged sewer backup into his garage and basement. (Doc.
964). On November 3, 2016, Mr. Flack filed an SBU claim with
MSD. MSD denied the claim because it determined that the
damage to Mr. Flack's property resulted from overland
flooding not emanating from MSD's Sewer System and not
from a backup of MSD's sanitary sewer. Mr. Flack
disagreed and filed this appeal.
Flack testified that on August 28, 2016, he observed high
water flowing down Sunnyslope Drive, which runs parallel to
his property and perpendicular to Sunnyslope
Terrace. He went to his basement and observed six
to eight inches of standing water. Mr. Flack reported that
this was the first time in sixteen years that his property
backed up. (Doc. 1065-3 at 4).
Flack contacted MSD on September 3, 2016 to report damage to
his real and personal property from the August 28, 2016
flood. Due to the overwhelming number of calls for service
that arose from this storm, MSD crews did not respond to Mr.
Flack's residence to investigate. An employee from Tenco
Services, Inc., MSD's adjuster, inspected Mr. Flack's
home for property damage and advised Mr. Flack that he would
be contacted regarding the cleanup process and that Mr. Flack
should file a claim as soon as possible.
provided cleaning services for Mr. Flack's home prior to
conducting a more in-depth evaluation of the cause of
flooding "consistent with SBU Program policy and in the
interest of public health and safety." (Doc. 1065 at 1).
Servpro, an MSD contractor, was dispatched to his property
and performed cleaning services. Mr. Flack states that
Servpro removed carpet from the garage, hallway, and
television room and removed 24 inches of dry wall and wood
paneling throughout the garage and basement. Servpro also
removed two doors and door jams. Mr. Flack signed a document
from Servpro that authorized Servpro "to perform any and
all necessary cleaning and/or restoration services on
Customer's property located at the property address above
as a result of sewer backup for which Metropolitan Sewer
District of Cincinnati has accepted responsibility."
(Doc. 845 at 11). Mr. Flack testified that he never gave
permission to Servpro to remove drywall and wood paneling or
remove the doors. Mr. Flack alleges that "[a]t no time
during all of the conversations were we told that we would be
left with the cost of putting our basement back together
again." (Doc. 964 at 4). He alleges that he was led to
believe that MSD was accepting responsibility for the damage
to his basement and garage when it hired Servpro to clean and
sanitize his basement. He argues MSD should not have allowed
a cleanup and removal process that rendered his basement
unusable when it was ultimately going to deny his claim.
further review of the sewer configuration and other available
information, MSD made the determination that the flooding at
Mr. Flack's home was not caused by a surcharge of the
public sewer. The property is located in the Paddock Hills
neighborhood of Cincinnati, which experienced heavy rainfall
and overland flooding on August 28, 2016. MSD states that Mr.
Flack's home is connected to MSD's sewer system near
the "head-end, " meaning the beginning or the
highest point of the local sewer. MSD alleges that because
Mr. Flack's home is situated near the top of the local
sewer, it receives no additional flow from upstream. In
addition, only 11 homes are tapped into this local sewer so
it receives relatively low contributing flow. MSD alleges
that the location of the storm inlets relative to Mr.
Flack's home is also unlikely to create a propensity for
a sewer backup.
presents evidence that it received only one other report of a
sewer backup that was tapped into the local sewer that serves
Mr. Flack's property. The residence located at 1076
Sunnyslope Drive reported experiencing six inches of flooding
on August 28, 2016. (Doc. 1065, Ex. E). MSD states that while
it has not confirmed that this flooding was due to a sewer
backup, it settled that homeowner's claim for $2, 430.00.
MSD states that the owner's claim documentation was
consistent with the amount of damage generally associated
with that level of flooding. (Doc. 1065, Ex. G). MSD presents
evidence that it settled claims submitted by two other
homeowners on Sunnyslope Drive, but it states that those two
properties are tapped into a local sewer that is completely
separate from the local sewer tied into Mr. Flack's home
and 1076 Sunnyslope Drive.
states it has triaged hundreds of SBU claims it received
following the August 28, 2016 storm. MSD alleges that it has
erred on the side of caution and offered a settlement where
its crews were unable to investigate the property and there
is no information available to strongly rebut the claim that
a sewer backup occurred, as was the case with the SBU claims
submitted by the three homeowners at 1076, 1115 and 1119
Sunnyslope Drive. (Doc. 1096 at 1-2).
contends that Mr. Flack's claim is distinguishable from
the three Sunnyslope Drive SBU claims it settled given the
relative elevation of his property in relation to the
building elevation of 1076 Sunnyslope Drive. MSD argues that
it would be nearly impossible for Mr. Flack's property to
experience a sewer backup in the basement (at approximately
583 feet elevation) unless 1076 Sunnyslope Drive (at
approximately 574 feet elevation) experienced a sewer backup
of a significantly higher depth than the reported six inches.
This conclusion is based on basic hydraulics and the
understanding that water seeks its own level. MSD alleges
that 1076 Sunnyslope Drive would have had to be flooded near
or above the basement ceiling before the sewer backed up even
one inch into Mr. Flack's basement, which sits nine feet
higher than 1076 Sunnyslope Drive. (Doc. 1096, Exs. H, I).
However, the homeowner at 1076 Sunnyslope Drive reported only
six inches of water. MSD also points to the absence of
reports of sewer backups from any of the four properties
tapped into the mainline sewer between Mr. Flack's
property and 1076 Sunnyslope Drive. Finally, MSD alleges that
Mr. Flack's home has a recessed driveway and garage,
which likely facilitated the flow of heavy rains and surface
flooding down into the building. Mr. Fronk testified that in
an area served by a combined sewer system, like Mr.
Flack's, the drain in a recessed driveway will be
connected to the basement drain. When water starts to ...