Mark Kidd, et al v. State Farm Fire & Casualty Co., et al

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Mark Kidd, et al v. State Farm Fire & Casualty Co., et al

Doc. 0

Case: 10-60057

Document: 00511191112

Page: 1

Date Filed: 08/02/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 2, 2010 N o . 10-60057 S u m m a r y Calendar Lyle W. Cayce Clerk

M A R K KIDD; BUFFIE KIDD, P la in t iffs - Appellants v. S T A T E FARM FIRE & CASUALTY CO., D e fe n d a n t - Appellee

A p p e a l from the United States District Court for the Southern District of Mississippi U S D C No. 1:08-cv-1443

B e fo r e KING, STEWART, and HAYNES, Circuit Judges. P E R CURIAM:* M a r k and Buffie Kidd ("the Kidds") appeal the district court's grant of s u m m a r y judgment in favor of State Farm Fire & Casualty Company ("State F a r m " ) on their claim for the balance of their flood insurance policy limits. The d is t r ic t court held that the Kidds were not entitled to the balance of the policy l i m i t s because they failed to timely submit a sworn proof of loss for the a d d it io n a l claimed damages. We AFFIRM.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 10-60057

Document: 00511191112

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Date Filed: 08/02/2010

No. 10-60057 T h e Kidds' home was damaged by flooding when Hurricane Katrina hit the M i s s i s s i p p i Gulf Coast on August 28, 2005. At the time of the flooding, the K id d s held a Standard Flood Insurance Policy ("SFIP") issued and administered b y State Farm, an approved "Write Your Own" ("WYO") insurance carrier under t h e federal government's National Flood Insurance Program ("NFIP"). The N F I P is operated by the Federal Emergency Management Agency ("FEMA") and is supported by the United States Treasury. The terms and conditions of the S F I P are fixed by FEMA and no provision of the policy can be "altered, varied, o r waived other than by the express written consent of the [Federal Insurance] A d m in is tr a to r through the issuance of an appropriate amendatory

e n d o r s e m e n t ." 44 C.F.R. § 61.13. After Hurricane Katrina hit, the Kidds made a claim under the SFIP for t h e flood damage to their property. Under the terms of the policy, their house w a s insured up to $125,000, subject to a $500 deductible. State Farm

d is p a t c h e d an adjuster to inspect the Kidds' home and appraise the damage. The adjuster concluded that the insurance policy covered $92,108.67 in property d a m a g e . The Kidds signed the adjuster's report, and, on October 17, 2005, State F a r m issued the Kidds a check for $92,108.67. On July 24, 2008, more than two-and-a-half years after they received the c h e c k , the Kidds notified State Farm that the total cost of their repairs had e x c e e d e d $136,000.00. The Kidds sought the balance of their policy limits and, w h e n State Farm did not respond, the Kidds filed the instant action. State Farm moved for summary judgment, asserting that the Kidds had fa ile d to comply with the policy requirements because they did not file a sworn p r o o f of loss for any damages in excess of the amount calculated by the adjuster. The Kidds argued that they were excused from filing a proof of loss because they a g r e e d with and signed the adjuster's report, which was accepted by State Farm. The district court concluded that any claim for damages in excess of the 2

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No. 10-60057 a d ju s te r 's calculation was subject to the proof-of-loss requirement and granted S t a te Farm's motion for summary judgment. The Kidds filed this appeal. They c o n t in u e to assert that they complied with the terms of the policy because they s ig n e d the adjuster's report, which, they argue, substitutes for the proof-of-loss r e q u ir e m e n t. We review a district court's grant of summary judgment de novo. N. Am. S p e c ia lty Ins. Co. v. Royal Surplus Lines Ins. Co., 541 F.3d 552, 555 (5th Cir. 2 0 0 8 ). Summary judgment is proper "if the pleadings, the discovery and

d is c lo s u r e materials on file, and any affidavits show that there is no genuine is s u e as to any material fact and that the movant is entitled to judgment as a m a t t e r of law." FED. R. CIV. P. 56(c). A genuine issue of material fact exists w h e n the evidence is such that a reasonable jury could return a verdict for the n o n -m o v a n t . Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When r e v ie w in g a grant of summary judgment, we view all facts and evidence in the lig h t most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson B r o s ., 453 F.3d 283, 285 (5th Cir. 2006). Federal law governs interpretation of N F I P policies. See Spence v. Omaha Indemnity Ins. Co., 996 F.2d 793, 796 (5th C ir . 1993)(noting that "national policies underlying the NFIP and extensive f e d e r a l role therein impel our conclusion that federal common law governs c la im s under flood insurance policies"). T h e Kidds argue that the district court erred by granting summary ju d g m e n t in favor of State Farm because a genuine issue of material fact exists r e g a r d in g whether the Kidds complied with the terms of the policy. The Kidds a s s e r t that they complied with the terms of the policy because the policy states: " A t our option, we may accept an adjuster's report of the loss instead of your p r o o f of loss. . . . You must sign the adjuster's report." 44 C.F.R. § 61, app. (A)(1), a r t . VII(J)(9). The Kidds argue that they were not obligated to file a proof of loss

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No. 10-60057 b e c a u s e they signed the adjuster's report and State Farm accepted the report in lie u of a sworn proof of loss from the Kidds. With respect to the amounts it has already paid, State Farm does not d is p u t e that the Kidds complied with the terms of the policy by signing the a d ju s te r 's report appraising the property damage at $92,108.67; however, State F a r m argues that if the Kidds disagreed with the adjuster's damage calculation, t h e y were required to submit a sworn proof of loss for any additional damages. Because the Kidds failed to submit a sworn proof of loss for the damages in e x c e s s of the adjuster's calculation, State Farm argues that the Kidds may not r e c o v e r any additional payments. We agree. In cases construing the terms of the SFIP, we have held that an insured m u s t file a sworn proof of loss before seeking damages in excess of the amount p a id by the insurer. See Marseilles Homeowners Condo. Ass'n, Inc. v. Fid. Nat'l I n s . Co., 542 F.3d 1053, 1055-56 (5th Cir. 2008) (per curiam) (holding that the in s u r e d could not maintain a lawsuit for additional federal benefits because he h a d not submitted a sworn proof of loss); 44 C.F.R. § 61, app. (A)(1), arts. VII(J), V I I (R ) (stating that an insured in the NFIP "may not sue us to recover money u n d e r this policy unless [it has] complied with all the requirements of the p o lic y " ); see Richardson v. Am. Bankers Ins. Co., 279 F. App'x 295, 298 (5th Cir. 2 0 0 8 ) (unpublished)1 ("This is a strict requirement. The regulations say that a N F I P participant cannot file a lawsuit seeking further federal benefits under the S F I P unless the participant can show prior compliance with all of the policy's r e q u ir e m e n t s , including the [proof-of-loss] requirement."); see also Wientjes v. A m . Bankers Ins. Co. of Fla., 339 F. App'x 483, 485 (5th Cir. 2009) (unpublished) ("T h e Wientjeses did not agree with American Bankers's adjustment, settlement,

Unpublished opinions generally are not precedent. We cite these decisions for their persuasive value and factual similarity. Furthermore, Richardson's reasoning was approved in a published opinion, Marseilles. 542 F.3d at 1056, and, thus, is binding to that extent.

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No. 10-60057 a n d payment of their claims. As such, they were required to submit a timely p r o o f of loss as a prerequisite to filing suit."). Indeed, the facts in Richardson are almost identical to the facts in the p r e s e n t case. In Richardson, the insured filed a claim under the SFIP and after a n adjuster evaluated the damages, the insured received $16,125.50 from the in s u r e r . 279 F. App'x at 296. Richardson later sought additional payments, but n e v e r submitted a formal proof of loss for the additional amounts sought. Id. at 2 9 7 . The insurance company denied Richardson the additional payments, and R ic h a r d s o n filed suit. We affirmed the district court's grant of summary

ju d g m e n t , concluding that Richardson could not sue for the additional damages b e c a u s e he never submitted a sworn proof of loss for the damage amount in e x c e s s of the adjuster's calculation. Id. at 298 ("Richardson's position is contrary t o federal statutory law, the Administrator's Waiver, and our precedent. . . . [I]f t h e policyholder disagreed with the insurer's calculation of the amount owed, the p o lic y h o ld e r had to submit to the insurer a sworn [proof of loss] within one year o f the date of loss."). In this case, the Kidds did not file a proof of loss for the amount sought in e x c e s s of the policy limits. The adjuster's report substituted for a sworn proof o f loss only to the extent of the damages assessed in the report. If the Kidds d is a g r e e d with the adjuster's calculation, they were required to submit a sworn p r o o f of loss demonstrating that the additional damages claimed were covered b y the policy.2 They did not do so. Because the Kidds failed to comply with the

To the extent that the Kidds argue in their reply brief that an August 31, 2005, FEMA memorandum waived the proof-of-loss requirement, this argument was not raised in their opening brief and is waived. Tharling v. City of Port Lavaca, 329 F.3d 422, 430 (5th Cir. 2003) (a party waives an issue by not raising it in their opening brief). We observe, however, that this argument is foreclosed by circuit precedent. Marseilles, 542 F.3d at 1053 (holding that the August 2005 FEMA memo did not "render permissive the requirement to file a proof of loss prior to filing suit"); see also Wientjes, 339 F. App'x at 485 (rejecting the appellants' argument that the August 2005 memo excused the appellants from filing a sworn proof of loss).

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No. 10-60057 p o lic y requirements, we conclude that the district court properly held that the p r o o f-o f-lo s s requirement precludes the Kidds' claim for additional payments.3 Accordingly, the judgment of the district court is AFFIRMED and the a p p e lla n t s ' motion to strike is DENIED AS MOOT.

Because we agree with the district court's finding that the Kidds did not comply with the policy requirements, we decline to address State Farm's alternate argument that we should look to the NFIP Adjuster's Claims Manual published by FEMA, which purportedly limits the application of Article VII(J)(9) to claims having a value of less than $7,500. Instead, we conclude that the signed adjuster's report does not entitle the Kidds to payment beyond the $92,108.67 already paid, and that the Kidds cannot recover further benefits because they failed to submit a timely sworn proof of loss establishing the additional claimed amount.

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