USA v. Bd Of Comm Ham Co, et al

Filing 585

ORDER that claimaint's 552 sewer back up claim in this case as to Marilyn Eisbrouch is Denied. Signed by Magistrate Judge Karen L. Litkovitz on 11/19/2012. (art) Modified on 11/19/2012 (art).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
UNITED STATES OF AMERICA, et al.,
Plaintiffs

Case No. 1:02-cv-107
Spiegel, J.
Litkovitz, M.J.

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

ORDER RE: REQUEST
FOR REVIEW BY
MARILYN EISBROUCH

This matter is before the Court on the Request for Review of the denial of a Sewer Back Up
("SBU'') claim by Marilyn Eisbrouch. (Doc. 552). Ms. Eisbrouch seeks compensatory damages
from the Metropolitan Sewer District of Greater Cincinnati ("MSD") based on MSD's failure to
provide her plumber with the necessary information to repair a major sewage problem in her home
in February 2012.
Ms. Eisbrouch'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 ofthe
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 exercise
its good faith reasonable engineering judgment and consider the following non-exclusive factors:

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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.

amount of precipitation, property SBU history, condition ofthe sewer system in the neighborhood,
results of a visual inspection of the neighborhood to look for signs of overland flooding,
neighborhood SBU history, capacity ofnearby 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. !d.
Ms. Eisbrouch is the owner of property at 3934 Oakpark Place, Cincinnati, Ohio. In early
February 2012, Ms. Eisbrouch discovered a backup of sewage into her basement. On February 6,
2012, a private plumber hired by Ms. Eisbrouch arrived at her home and was met by MSD
workers. The plumber was advised by the MSD workers that the building lateral from Ms.
Eisbrouch's house was not connected to the MSD public line, which later proved to be inaccurate,
and MSD had no records verifying a connection to the public sewer line. It was later determined
that Ms. Eisbrouch's building lateral line was connected to a private sewer line which then
connected to the main sewer several houses away. Whoever constructed Ms. Eisbrouch's private
sewer line did not provide MSD with a drawing indicating its location or the location of Ms.
Eisbrouch's tap into that private line. Approximately one week after Ms. Eisbrouch's plumber had
expended a significant amount of time and effort determining the cause and location of the backup,
it was discovered that Ms. Eisbrouch's house was in fact connected to MSD's public sewer line via
the private line.
Ms. Eisbrouch states she paid an additional $3,000.00 in unnecessary plumbing expenses
caused by MSD's failure to properly investigate the sewer line issue and confirm that her house
was in fact connected to the public sewer system. Ms. Eisbrouch submitted a claim to MSD for the
$3,000.00 she paid for the extra week's worth oflabor by her plumber.
MSD denied the claim, finding that the sewer backup was caused by a blockage in Ms.

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Eisbrouch's private line which needed to be resolved by her plumber. MSD also found that the
lack ofMSD records should not have prolonged the work performed by Ms. Eisbrouch's plumber
and that the cause of the delay was the plumber's own reluctance to act on his own findings.
Ms. Eisbrouch's appeal must be denied. As the claimant in this case, Ms. Eisbrouch bears
the burden of proof of showing that the backup of sewage and any damage was caused by a
problem with the main sewer line maintained by MSD and not an obstruction in the lateral line for
which she is responsible. (Doc. 131, Consent Decree, Exhibit 8 at 1) ("The Claims Process is not
intended to address water in buildings caused by ... blockages in occupants' own lateral sewer
lines."). The evidence shows that there were three blockages in Ms. Eisbrouch's lateral line. (Doc.
552, p. 8). Under the consent decree in this case, recovery may not be had for damages caused by
blockages in the occupant's own lateral sewer lines. Given the undisputed evidence of an
obstruction in the lateral line, the Court must deny Ms. Eisbrouch's claim for recovery of the
additional expenditures. The additional expenses incurred by Ms. Eisbrouch were not related to a
problem in the main sewer line, but were related to a blockage in the lateral line for which MSD is
not responsible. The Court appreciates the frustration that a homeowner like Ms. Eisbrouch must
feel given the circumstances, but the Court is constrained by the parameters of the Consent Decree
in awarding damages. She cannot recoup her losses through the federal Consent Decree governing
SBU claims. Therefore, the Court denies the claim in this case.
IT IS SO ORDERED.

Date: /1I

i/9 /.;?..0/;2

Karen L. Litkovitz, Magistrate Jud
United States District Court

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