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United States v. Board of Hamilton County Commissioners

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

October 18, 2017

UNITED STATES OF AMERICA, et al., Plaintiffs,

          Barrett, J.


          Karen L. Litkovitz, Magistrate Judge.

         This 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).

         Mr. Flack'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 Systems 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. 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.

         Mr. 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.[2] 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).

         Mr. 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.

         MSD 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.

         After 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.

         MSD 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.

         MSD 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).

         MSD 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 ...

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