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United States v. Board of Hamilton County Commissioners

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

October 30, 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 DIANE HENSON

          Karen L. Litkovitz, Magistrate Judge United States District Court.

         This matter is before the Court on the Request for Review of the denial of a Sewer Backup ("SBU") claim by Diane Henson (Doc. 955) and the response and supplemental response of the Metropolitan Sewer District of Greater Cincinnati ("MSD") (Doc. 1091, 1124). On September 28, 2017, the Court held a hearing on Ms. Henson's request for review at which Ms. Henson, Bob Zacharias, and Tom Fronk, MSD Engineering Technical Supervisor, testified and documentary evidence was submitted. (Doc. 1103).

         Ms. Henson'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).

         Ms. Henson is the owner of the property located at 4389 Dalehurst Drive, Cincinnati, Ohio. On March 1, 2017, the area in which Ms. Henson's property is situated experienced heavy rainfall. On March 5, 2017, MSD received a report that 4389 Dalehurst Drive was currently experiencing a sewer backup. MSD crews responded to investigate and found that the home was not currently flooded, but it had previously flooded. Upon inspection of the mainline, toilet paper was observed on a rung 6'2" below the manhole rim, which is an indication that the manhole surcharged at some point in time. (Doc. 1091, Ex. A). MSD states that due to the delayed reporting, an in-depth investigation evaluating these findings and other information to determine the cause of flooding was not performed by MSD.

         On March 31, 2017, Ms. Henson filed an SBU claim with MSD seeking compensation for property damage allegedly resulting from a sewer backup on March 1, 2017. Ms. Henson states that by 2:00 a.m. on March 1, 2017, water had already made its way into her finished basement family room. She reported that water backed up in the driveway, went into the garage, then the laundry room, and finally made its way into the family room. Ms. Henson states that MSD denied her claim because she did not report the SBU within 24 hours of its occurrence. Ms. Henson alleges that MSD's online information does not specify the 24-hour reporting requirement. She states that when an MSD crew came to her house on March 5, they "said it was their problem" and advised Ms. Henson to call Ohio Valley Restoration. (Doc. 955 at 2-3). She states that the restoration company provided cleaning services three weeks later and tore out dry wall and threw away wet items. (Doc. 955 at 3). Ms. Henson seeks compensation for the personal property that was disposed of by the restoration company. (Doc. 955).

         Ms. Henson also presents evidence that MSD paid the claim of her father, Bob Zacharias, who lives next door to Ms. Henson. Mr. Zacharias testified that he also reported a basement backup the same day his daughter did. He states MSD reimbursed him $3, 071.36 for damages he sustained as a result of the March 1, 2017 storm. See also Doc. 1124-2 at 10 (Rumpke Restoration [$2, 500.00] new carpet padding from Carpetland [$426.93] carpet cleaning by Teasdale Fenton [$144.43]).

         MSD presents evidence that out of an abundance of caution and in response to the large storm that occurred on March 1, 2017, MSD authorized cleaning services for both Ms. Henson's and Mr. Zacharias's properties. MSD paid $3, 735.33 for the cleaning services provided to Ms. Henson. (Doc. 1124, Ex. F). Mr. Zacharias declined MSD's offer to provide free cleaning services and instead hired his own contractor to clean and sanitize his basement.

         MSD received a claim from Mr. Zacharias on March 16, 2017, requesting reimbursement of $3, 071.36. (Doc. 1124, Ex. G). Similar to Ms. Henson, his claim was denied due to the delayed reporting. (Doc. 1124, Ex. H). However, MSD later discovered that Mr. Zacharias had previously been offered cleaning services by MSD and that his SBU claim consisted almost entirely of cleaning expenses. (Doc. 954 at 15). MSD alleges that this scenario highlights somewhat of a discrepancy in MSD's responsibilities under the Consent Decree:

Under the SBU Claims Process Plan (Doc. 131, Consent Decree, Exhibit 8), occupants are required to report a SBU within 24 hours of discovery in order to initiate a SBU claim. Under the SBU Customer Service Program Plan (Id., Exhibit 7), there is no such 24-hour reporting requirement for cleaning services to be offered. This sends conflicting messages when occupants are offered free cleaning services, pay out of pocket for their own cleaning services, and then are denied reimbursement for those expenses through the SBU claims process. To remedy this discrepancy, in cases where claims are not eligible for compensation for other reasons (i.e., causation, delayed reporting), the City Solicitor's Office makes an effort to offer reimbursement for eligible cleaning expenses when those services were offered by MSD but declined by the customer. As such, Mr. Zacharias was offered compensation for the cleaning expenses. Because MSD and the City Solicitor's Office could not justify the use of its limited resources to litigate the amount of $426.93 for carpet padding replacement, that amount was also included in his offer amount in order to settle the matter.

(Doc. 1124, Ex. I).

         MSD disagrees that its website fails to notify homeowners of the 24-hour reporting requirement. MSD states that on December 9, 2016, MSD added specific language to its website to emphasize the 24-hour reporting requirement. That language states, "Note: SBUs must be reported within 24 hours to be eligible for reimbursement of damages." This information is displayed within an orange box on every page of the SBU website. MSD also added the following language to the SBU website's "Filing a Claim" page: "Sewer backups must be reported within 24 hours of discovery to be potentially eligible for compensation under the SBU Claims Process." (Doc. 1091, Ex. D). In addition to providing notice on its website, MSD also ...


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