United States District Court, S.D. Ohio, Western Division
ORDER RE: REQUEST FOR REVIEW BY CHARLES
L. Litkovitz Magistrate Judge
matter is before the Court on the Request for Review of the
denial of a Sewer Backup ("SBU") claim by Charles
Koller (Doc. 1201) and the response of the Metropolitan Sewer
District of Greater Cincinnati ("MSD") (Doc. 1300).
On June 28, 2018, the Court held a hearing on Mr. Kollefs
request for review of his SBU claim. Mr. Koller's
daughter, Sharon Koller, appeared on his
Koller'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 Mr. Koller's
property experienced an SBU that is subject to the claims
process under the Consent Decree. (Doc. 1300). The only issue
in this case is the amount of compensation Mr. Koller is
entitled to for his property loss.
Koller is the owner of the property located at 559 Woodside
Heights, St. Bernard, Ohio. On August 28, 2016, Mr. Koller
experienced sewer backup in his basement which resulted in
damage to his personal property. On October 31, 2016, Mr.
Koller made a claim for damages to MSD for the sewer backup.
(Doc. 1300, Ex. B). On January 12, 2017, Mr. Koller submitted
a second/supplemental claim to MSD for exterior damages.
(Doc. 1300, Ex. C). MSD's adjuster, Tenco Services, Inc.,
valuated the personal property loss at $5, 311.02 and the
real property/structural loss at $13, 480.98. (Doc. 1300, Ex.
D at 4). In compliance with Ohio Rev. Code §
2744.05(B)(1), the adjuster deducted the $5, 000.00 Mr.
Koller received from his insurance carrier from the
calculated total damages, leaving a balance of $ 13, 792.00.
(Id.). Upon review by the City Solicitor's
Office, it was discovered that the adjuster accounted for two
basement repair invoices. Both bids were for different
alternative methods and costs for the repair of basement
paneling: the first estimate of $5, 000.00 was for the
removal and replacement of the paneling; the second estimate
was for the removal of the paneling and the painting of the
walls. (Doc. 1300, Ex. B at pp. 29 and 30). MSD allowed the
lower estimate and deducted the $5, 000.00 estimate from the
total damages calculated by the adjuster. As a result, MSD
offered Mr. Koller $8, 792.00 in settlement of his claim. Mr.
Roller accepted the offer and signed a written agreement
releasing MSD 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
August 28, 2016 at 559 Woodside Heights, Cincinnati, OH
45217." Mr. Rollers settlement check for $8, 792.00 was
transmitted on March 8, 2017. (Doc. 1300, Exs. E, F).
April 21, 2017, Mr. Koller filed a third SBU claim with an
additional invoice in the amount of $1, 700.00 for painting.
(Doc. 1300, Ex. G). MSD denied this claim because the costs
for painting were compensated in connection with his previous
claims and he had signed an agreement releasing MSD from
further liability. (Doc. 1300, Ex. H). Mr. Koller then filed
appears from his Request for Review that Mr. Koller disputes
the amount of compensation MSD has offered. Mr. Koller
submits a proposal for basement painting in the amount of $
1, 700.00 (Doc. 1201 at 3); an estimate of $2, 100.00 for
removal and replacement of his back deck (Id. at 4);
an estimate of $530.00 for the installation of a back
entryway from the garage to the back yard (Id. at
7); and an estimate of $5, 200.00 for the installation of a
privacy fence (Id. at 8).
Koller formally accepted MSD's offer of $8, 792.00 to
resolve his SBU claim for the damages sustained on August 28,
2016. (Doc. 1300, Ex. F). In connection with that payment,
Mr. Koller 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 August 28, 2016, at 559 Woodside Heights, Cincinnati,
OH 45217." 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."
Scotis 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 $8, 792.00, Mr. Koller agreed
to release any and all claims he may have arising from sewer
backup in his basement on August 28, 2016. There is no
allegation or indication that the release entered into by Mr.
Koller and the City of Cincinnati was obtained by fraud. In
addition, there is no evidence that the consideration Mr.
Koller received was not valuable in settling his first two
claims. 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 Mr. Roller's. Having no evidence that ...