United States District Court, S.D. Ohio, Western Division
ORDER RE:REQUEST FOR REVIEW BY NICOLE
L. LITKOVITZ, MAGISTRATE JUDGE
matter is before the Court on the Request for Review of the
denial of a Sewer Backup ("SBU") claim by Nicole
Mancini (Doc. 1273) and the response of the Metropolitan
Sewer District of Greater Cincinnati ("MSD") (Doc.
1370). On June 28, 2018, the Court held a hearing on Ms.
Mancini's request for review of her SBU claim, at which
MSD appeared. Ms. Mancini did not appear and later informed
the Court that she did not wish to appear in person for a
hearing. Therefore, the Court resolves this appeal on the
basis of the parties' written submissions.
Mancini'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, MSD does not dispute that Ms. Mancini's
property experienced an SBU that is subject to the claims
process under the Consent Decree. (Doc. 1370). The only issue
in this case is the amount of compensation Ms. Mancini is
entitled to for her property loss.
Mancini is the owner of the property located at 3601
Edgebrook Drive, Green Township, Ohio. On March 1, 2017, Ms.
Mancini experienced sewer backup in her basement which
resulted in damage to her personal and real property. On June
8, 2017, Ms. Mancini made a claim for damages to MSD for the
sewer backup. (Doc. 1370, Ex. B). MSD valuated the personal
property loss at $4, 099.91. (Doc. 1370, Ex. C). MSD
determined the reasonable cost to repair damaged real
property was $5, 000.00, which was covered by Ms.
Mancini's insurance. In compliance with Ohio Rev. Code
§ 2744.05(B)(1), MSD was required to deduct the $5,
000.00 Ms. Mancini received from her insurance carrier from
the calculated total damages, leaving a balance of $4,
099.91. (Id.). As a result, MSD offered Ms. Mancini
$4, 099.91 in settlement of her claim.
Mancini initially rejected MSD's offer and filed this
appeal. However, Ms. Mancini later accepted MSD's offer
on April 3, 2017 and signed a written release. Ms. Mancini
cashed her settlement check for $4, 099.91 on April 11, 2018.
(Doc. 1370, Ex. D).
appears from her Request for Review that Ms. Mancini disputes
the amount of compensation MSD has offered. However, Ms.
Mancini formally accepted MSD's offer of $4, 099.91 to
resolve her SBU claim for the damages sustained on March 1,
2017. (Doc. 1370, Ex. D). In connection with that payment,
Ms. Mancini signed a release "from any and all claims,
demands, actions and causes of action whatsoever or in any
manner arising from a 'Sewer Backup' incident on or
about March 1, 2017 at 3601 Edgebrook Drive in Cincinnati, OH
45248." Id. The release further provides,
"It is expressly understood and agreed that the payment
of the above stated sum of money is the sole consideration of
this release and the consideration stated herein is
contractual and not a mere recital." Id.
release is a contract that is favored by the law to encourage
the private resolution of disputes." Lewis v.
Mathes, 829 N.E.2d 318, 322 (Ohio App. 4th Dist. 2005)
(citation omitted). A release is "defined as the giving
up or abandoning of a claim or right to the person against
whom the right is to be enforced or exercised."
Richland Auto Grp., Inc. v. Fifth Third Bank, No.
11CA77, 2012 WL 2551125, at *3 (Ohio App. 5th Dist. 2012)
(citing Fabrizio v. Hendricks, 654 N.E.2d 127 (Ohio
App. 11th Dist. 1995)). "Absent fraud or mutual mistake,
broadly-worded releases are generally construed to include
all prior conduct between the parties, even if the scope of
such conduct or its damage is unknown to the releasor."
Scotts Co. LLC v. Liberty Mut. Ins. Co., 606
F.Supp.2d 722, 734-35 (S.D. Ohio 2009) (citing Denlinger
v. City of Columbus, Ohio Public Schools, No. 00AP-315,
2000 WL 1803923, at *5 (Ohio App. 10th Dist. Dec. 7, 2000)).
In the absence of fraud, the release of a cause of action
bars any later action on any claim encompassed within the
release. Lewis, 829 N.E.2d at 322 (citing Haller
v. Borror Corp., 552 N.E.2d 207 (Ohio 1990)).
consideration of the receipt of $4, 099.91, Ms. Mancini
agreed to release any and all claims she may have arising
from sewer backup in her basement on March 1, 2017. There is
no allegation or indication that the release entered into by
Ms. Mancini and the City of Cincinnati was obtained by fraud.
In addition, there is no evidence that the consideration Ms.
Mancini received was not valuable in settling her claim.
See Manning v. Brucato, No. 49361, 1986 WL 1062, at
*2 (Ohio App. 8th Dist. Jan. 23, 1986) ("So long as the
consideration is valuable it does not become insufficient
merely because it may not be adequate."). The City of
Cincinnati is entitled to rely on the release and the
finality such release provides in the settlement of claims
like Ms. Mancini's. Having no evidence that the release
is not enforceable, the Court is constrained to uphold
MSD's decision in this case denying Ms. Mancini's
claim for further damages.
the Court denies Ms. Mancini's claim in this case.