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United States v. Board of Hamilton County Commissioners

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

December 15, 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 KIMBERLY TURNBOW

          Karen L. Litkovitz, M.J.

         This matter is before the Court on the Request for Review of the denial of a Sewer Backup ("SBU") claim by Kimberly Turnbow (Doc. 951), the response of the Metropolitan Sewer District of Greater Cincinnati ("MSD") (Doc. 1097), and the supplemental responses of the parties (Docs. 1120, 1151, 1152, 1153-1, 1175, 1180). On September 28, 2017, the Court held a hearing on Ms. Turnbow's request for review of her SBU claim. (Doc. 1102). The Court held supplemental hearings on October 17, 2017 (Doc. 1125), November 6, 2017 (Doc. 1153), and December 13, 2017 (Doc. 1198).

         Ms. Turnbow'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. Turnbow's personal and real property was an MSD sewer backup. The only issue in this case is the amount of damages for Ms. Turnbow's property loss.

         Ms. Turnbow is the owner of the property located at 20 Merzen Court, Cincinnati, Ohio. On August 28, 2016, Ms. Turnbow experienced an SBU incident in her basement which resulted in damage to her personal and real property. MSD crews responded to investigate Ms. Turnbow's report of a sewer backup and were able to identify evidence of a mainline sewer surcharge as well as overland flooding. MSD customer service contacted Ms. Turnbow on September 2, 2016 and she reported her hot water heater was not currently functioning. As such, she was referred to MSD contractor DNK Architects in order to expedite the repair and reimbursement for her home's critical mechanicals. Ms. Turnbow was given notice that she could proceed with repairs to her hot water heater, furnace, and electrical panel on October 20, 2016. DNK verified the repairs were completed and MSD issued two-party checks to Ms. Turnbow and her contractors for a total of $ 12, 743.00 on October 31, 2016.

         Ms. Turnbow then made a claim for personal property damages to MSD for the August 2016 sewer backup into her basement. MSD made an offer of $4, 910.84 to Ms. Turnbow as compensation for her claim. Ms. Turnbow rejected the offer and filed this appeal.

         Following the initial hearing of Ms. Turnbow's appeal in this Court, MSD made a revised offer of $10, 619.16 to Ms. Turnbow as compensation for her claim. Ms. Turnbow rejected that offer and seeks resolution of the dispute by this Court.

         Ms. Turnbow requests compensation for a vehicle and its contents, a toddler car seat and a handgun, which were damaged by the flood while parked in the driveway. Under the Consent Decree that governs the SBU claims process, Ms. Turnbow may not be compensated for property loss outside of her dwelling, including her vehicle and its contents. "A consent decree is essentially a settlement agreement subject to continued judicial policing, " the terms of which a court is obligated to enforce as circumstances dictate. Shy v. Navistar Intern. Corp., 701 F.3d 523, 532 (6th Cir. 2012) (quoting Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983)). In interpreting the terms of a consent decree, the Sixth Circuit has clarified:

"[C]onsent decrees bear some of the earmarks of judgments entered after litigation" and . . . "[a]t the same time, because their terms are arrived at through mutual agreement of the parties, consent decrees also closely resemble contracts." Local No. 93, M'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 519 (1986). It is this resemblance to contracts that requires that the scope of a consent decree "be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to" the consent decree. United States v. Armour & Co., 402 U.S. 673, 682 (1971).

Shy, 701F.3dat530.

         The clear language of the Consent Decree in this case limits recovery to structural or personal property damage of the building or dwelling of the occupant making an SBU claim. The Consent Decree defines "Water-in-Basement(s)" [now called Sewer Backup or SBU] as "any release of wastewater from Defendants' Sewer System to buildings that (i) is not the result of blockages, flow conditions, or malfunctions of a building lateral or other piping/conveyance system that is not owned or operationally controlled by Defendants; and (ii) is not the result of overland, surface flooding not emanating from Defendants' Sewer System." (Doc. 131, Consent Decree at ...


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