United States District Court, S.D. Ohio, Western Division
ORDER RE: REQUEST FOR REVIEW BY KAREN MARIE
L. Litkovitz, Magistrate Judge.
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.
Wagner'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, 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
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.
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
• 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 ...