United States District Court, S.D. Ohio, Western Division
ORDER RE: REQUEST FOR REVIEW BY DIANE HENSON
L. Litkovitz, Magistrate Judge United States District Court.
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).
Henson'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).
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.
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).
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]).
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.
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
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
(Doc. 1124, Ex. I).
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 ...