USA v. Bd Of Comm Ham Co, et al

Filing 573

ORDER that the claim 519 of Thomas Lloyd is Denied. Signed by Magistrate Judge Karen L. Litkovitz on 8/16/2012. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

UNITED STATES OF AMERICA, et al.,
Plaintiffs

Case No. 1:02-cv-1 07
Spiegel, J.
Litkovitz, M.J.

vs
BOARD OF HAMILTON COUNTY
COMMISSIONERS, et al.,
Defendants

ORDER RE: REQUEST
FOR REVIEW BY
THOMAS LLOYD

This matter is before the Court on the Request for Review of the denial of a Sewer Back
Up ("SBU") claim by Thomas Lloyd. (Doc. 519). Mr. Lloyd seeks compensatory damages from
the Metropolitan Sewer District of Greater Cincinnati ("MSD") for water backup into his
basement.
Mr. Lloyd's request for review is filed under the Sewer Back Up 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 ofMSD'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 Systems or caused by blockages in occupants' own lateral
sewer lines.
(Doc. 131, Consent Decree, Exhibit 8 at 1). In determining the cause ofSBU, MSD must
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The "Water-In-Basement" program has been renamed the "Sewer Back Up" program to more accurately
reflect MSD's responsibility for sewage backups caused by inadequate capacity in MSD's sewer system. See Doc.
452 at 4; Doc. 454 at 16.

exercise its good faith reasonable engineering judgment and consider the following nonexclusive 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. ld.
Mr. Lloyd is the owner of the property located at 6822 Roe Street, Cincinnati, Ohio. Mr.
Lloyd's basement flooded on April23, 2011, following a rain event. He contacted MSD, who
investigated by running a video camera through the sewer lines to determine if there were any
blockages. MSD denied Mr. Lloyd's claim, finding that the back-up of water into his property
was the result of a blockage in the private sewer line and not a problem in the public sewer. Mr.
Lloyd disputes MSD's finding and states that he was repeatedly advised by MSD workers that
the video taken by MSD was of the public sewer line, and not his private lateral line. As relief,
he requests $5,129.00 for water removal, drain cleaning, damaged building materials, and
personal property damage.
MSD presents evidence that in response to Mr. Lloyd's call regarding the April23, 2011
event, MSD recorded by video camera the private sewer lateral line only, and not the public
sewer main line. (Doc. 563, Exhibit A). MSD investigated the back-up problem at Mr. Lloyd's
property on April27, 2011, by attempting to record the building sewer, but the investigation had
to be abandoned after eleven feet due to grease blockages, and the property was referred for
flushing of the building sewer by MSD. (Doc. 563, Exhibit A, p.1). On May 7, 2011, MSD
returned to the property to resume recording the sewer, but the camera was again unable to make
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it past the eleven foot location due to grease blockages. (Id., Exhibit A, pp. 2, 4). The property
was then referred for rootcutting of the building sewer by MSD. (Id., Exhibit A, p. 2). After the
rootcutting was completed, MSD returned to the property on May 7, 2011, to continue recording
the building sewer. With the grease deposits removed, the crew was able to reach the right-ofway with the camera. (Exhibit A, p. 3). On May 19, 2011, MSD installed a two-way cleanout
using "vac-a-tee" technology, part of its standard procedure. MSD states that no other homes
within a half-mile of the Lloyd property experienced a backup on the date in question. Based on
MSD's investigation and the apparent grease blockage of the lateral sewer line, MSD denied Mr.
Lloyd's claim on June 6, 2011.
In connection with his appeal, Mr. Lloyd submitted a video taken by MSD which he
states shows the main public sewer line and not the lateral line. At the July 24, 2012 hearing of
this matter, the Court viewed the video taken by MSD. Tom Fronk, an Engineering Technical
Supervisor with MSD's Special Investigations Division, testified that his duties include viewing
video of MSD sewers on a daily basis and he recognized the video as one of the lateral line based
on the cable and launch camera utilized. In addition, the documentation presented by MSD to
the Court indicates that the video was of the lateral, and not the public, sewer line. (Doc. 563,
attachments). Based on the evidence presented, the Court is satisfied that the video is in fact of
Mr. Lloyd's lateral line and not the public sewer line.
Under the SBU program governed by the Consent Decree, homeowners who seek review
of the denial of an SBU claim bear the burden of proof of showing that the backup of wastewater
into their property was due to inadequate capacity in MSD's sewer system and not due to
blockages in the occupant's own lateral sewer lines. (Doc. 131, Consent Decree, Exhibit 8 at 1).

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Here, Mr. Lloyd has not shown that any wastewater backup into his basement was caused by
inadequate capacity in MSD's sewer system. MSD has presented evidence that the
contemporaneous investigation of Mr. Lloyd's claim disclosed a grease blockage in the lateral
line which is the responsibility of the homeowner. In addition, there is no evidence of any signs
of sewer discharge from the main sewer line and MSD received no other complaints of sewer
backups in the vicinity of 6822 Roe Street at the time of Mr. Lloyd's reported backup to
substantiate a problem with the public sewer line. The Court appreciates the frustration which
Mr. Lloyd feels by being told the video was of the main sewer line by MSD workers. However,
the evidence before the Court shows the blockage occurred in the lateral line which is the
homeowner's responsibility. Any flooding of Mr. Lloyd's basement was not the result of a
capacity-related problem with the main sewer line, but rather was caused by a blockage in the
lateral line for which the homeowner is responsible. There is insufficient evidence to show that
the cause of the flooding to Mr. Lloyd's basement resulted from inadequate capacity in MSD's
Sewer System. Therefore, the Court denies Mr. Lloyd's claim in this case.

IT IS SO ORDERED.

Date:
Karen L. Litkovitz, Magistrate Ju
United States District Court

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