United States District Court, S.D. Ohio, Western Division
ORDER RE: REQUEST FOR REVIEW BY BRYAN T.
L. Litkovitz, United States District Court Magistrate Judge
matter is before the Court on the Request for Review of the
denial of a Sewer Back Up ("SBU") claim by Bryan T.
Stockelman (Doc. 943) and the Metropolitan Sewer District of
Greater Cincinnati ("MSD")'s response thereto
(Doc. 1083). On September 26, 2017, the Court held a hearing
on Mr. Stockelman's request for review. (Doc. 1099).
Stockelman's request for review is filed under the Sewer
Back Up 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
(Doc. 131, Consent Decree, Exhibit 8 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, Exhibit 8 at 2). Damages arising from basement
backups for which MSD is responsible are limited to
documented real and personal property. (Id.).
Stockelman is the owner of the property located at 5204 Leona
Drive, Cincinnati, Ohio. He seeks compensation for personal
property loss sustained on August 19, 2016 due to alleged
sewer backup into his basement. (Doc. 943). After discovering
the backup, Mr. Stockelman notified MSD, which sent a crew
that same day to investigate. The MSD crew determined there
was no problem with the public mainline sewer and that the
upstream and downstream sewers were open and running and had
not surcharged. (Doc. 1083-1). Mr. Stockelman hired a plumber
who reported he "found cracked pipe at main." (Doc.
943 at 52). The plumber's work order states, "need
M.S.D. [to] look at." (Id.). MSD was notified
and investigated. MSD determined there was a broken private
lateral sewer line located in the public right-of-way. (Doc.
1083-3 at 10). MSD determined there were no structural
defects between the mainline point of connection and the
lateral "Y" connection to Mr. Stockelman's
lateral. (Doc. 1099, Def. Ex. A). MSD found a broken pipe
located three feet upstream of the "Y" connection.
(Id.). MSD performed a repair of the lateral line in
October 2016. (Id.).
Stockelman testified that he was advised by both his plumber
and MSD workers that the broken sewer pipe was MSD's
responsibility. He alleges that the video of the lateral line
shows the break was in MSD's line and not his lateral
line. Mr. Stockelman also cites to the photographs taken by
MSD, which show the markings made by his plumber depicting
the location of the broken sewer line in the public
right-of-way. (Doc. 1083-1 at 4-5). Mr.
submitted a photograph of a clean out that MSD installed when
performing the repair work. (Doc. 1099, PI. Ex. 1). He argues
that this photograph depicts the point where MSD's
responsibility starts - at the clean out - and where his
responsibility ends for the sewer pipe that connects to the
main sewer line. (Id.).
March 7, 2017, Mr. Stockelman filed an SBU claim with MSD.
MSD denied Mr. Stockelman's claim, finding that the
backup of water into his property was the result of a break
in the private building sewer line and not a problem in the
public sewer. (Doc. 1083-4). Mr. Stockelman then filed this
the Consent Decree, property owners may recover damages to
personal or real property arising from "backup of
wastewater into buildings due to inadequate capacity in
MSD's Sewer System" and "damages arising from
backups that are the result of MSD's negligent
maintenance, destruction, operation or upkeep of the Sewer
System." (Doc. 131, Consent Decree, Exhibit 8 at 1).
Property owners are responsible for blockages in the
owner's building lateral sewer lines, which are owned by
the property owner and not MSD. (Id.). The building
sewer lateral line extends from the home, through the public
right-of-way, and to the connection with the MSD public
sewer. However, where a break or blockage is in a portion of
the owner's building lateral sewer line that lies in the
public street right-of-way, MSD is generally responsible for
the repair. MSD's Rules and Regulations provide in
The owner of the premises served by a sewer shall be
responsible for the maintenance and cleaning of the building
sewer from the building to the point of connection with the
public local sewer. Repair and reconstruction of the
building sewer in a public street right-of-way or
within the specified width of a recorded public easement
shall be the responsibility of the District except as
follows. ... It shall be the responsibility of the owner
or his agent to establish, by means of a valid sewer cleaner
contractor's receipt, that such a repair or
reconstruction is the responsibility of the District. The
District shall have the right to verify the sewer
cleaner's finding prior to beginning repair or
reconstruction. . . .
(Doc. 580, Ex. C, Section 2008, MSD Rules and Regulations)
(emphasis added). MSD undertakes repairs in public
right-of-way laterals to ensure proper, safe, and consistent
repairs. Where MSD receives notice from a property owner that
repair or reconstruction of the lateral in the public
right-of-way is necessary, MSD is required to make the
repairs in a timely manner. MSD alleges it is not responsible
for sewer repair or backups resulting from a broken ...