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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,
v.
BOARD OF HAMILTON COUNTY COMMISSIONERS, et al., Defendants.

          Barrett, J.

          ORDER RE: REQUEST FOR REVIEW BY KAREN MARIE WAGNER

          Karen L. Litkovitz, Magistrate Judge.

         This matter is before the Court on the Request for Review of the denial of a Sewer Backup ("SBU") claim by Karen Marie Wagner (Doc. 988) and the response of the Metropolitan Sewer District of Greater Cincinnati ("MSD") (Doc. 1106). On October 12, 2017, the Court held a hearing on Ms. Wagner's request for review of her SBU claim.

         Ms. Wagner'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).

         As an initial matter, the Court notes that there is no dispute that one of the causes of damage to Ms. Wagner's personal and real property was an MSD sewer backup. The only issue in this case is the amount of damages for Ms. Wagner's property loss.

         Ms. Wagner is the owner and landlord of the property located at 2887 Romana Place, Cincinnati, Ohio. On August 28, 2016, Ms. Wagner experienced an SBU incident in her basement which resulted in damage to her personal and real property. Ms. Wagner made a claim for damages to MSD for the August 2016 sewer backup into her basement. MSD made an offer of $15, 193.94 to Ms. Wagner as compensation for her claim. Ms. Wagner rejected the offer and filed this appeal.

         In her request for review, Ms. Wagner disputes the amount of compensation offered by MSD for the loss of her commercial, coin operated washer and dryer and wood flooring. Ms. Wagner presents evidence that the wood flooring was reclaimed, meaning it was salvaged or antique. MSD depreciated the flooring at 75%. Ms. Wagner contends that given the nature of the reclaimed wood flooring, it should not have been depreciated. She states:

• The salvaged wood flooring was neatly bundled and stored in the basement prior to the SBU and she intended to have it installed in the upper level of the building.
• Her State Farm Rental Dwelling policy considers the flooring as part of the dwelling because it is building material intended for the structure.
• The salvaged wood flooring value on the claim is already depreciated, like an antique, and should not be depreciated further.
• The Douglas Fir flooring was in excellent condition prior to the SBU.
• The estimated value she attributed to the flooring was conservative at $2.50-$3.00 per square foot whereas other quality, reclaimed wood flooring suppliers charge at least $5.00 or ...

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