Eslinger et al v. Colonial Claims Corp et al

Filing 40

MEMORANDUM OPINION AND ORDER The court FINDS that Plaintiff has no right to a jury trial; the court GRANTS the motion to quash the Plaintiff's jury demand and STRIKES that jury demand. Signed by Chief Judge Karon O Bowdre on 4/21/16. (SAC )

FILED
2016 Apr-21 AM 11:14
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
MARK ESLINGER and DOROTHY
ESLINGER,
Plaintiffs,
v.
COLONIAL CLAIMS CORP., and
WRIGHT NATIONAL FLOOD
INSURANCE COMPANY

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CV-15-BE-808-M

Defendants.
MEMORANDUM OPINION AND ORDER
This case is before the court on “Defendant Wright National Flood Insurance Company’s
Motion to Quash Plaintiff’s Jury Demand” (doc. 30), and this court’s “Order To Show Cause”
that Plaintiff Mark Eslinger show cause in writing on or before April 1, 2016 why the court
should not grant the motion to quash Plaintiff’s jury demand (doc. 34). The Plaintiff did not
respond to the court’s order by the deadline, and, indeed, has still not responded. For the reasons
stated below, the court FINDS that the motion to quash is due to be GRANTED.
The Federal Emergency Management Agency (“FEMA”) operates the National Flood
Insurance Program (“NFIP”) and, in doing so, uses private insurance companies, known as
“WYO carriers” to issue flood insurance policies. However, the federal government funds the
NFIP, covering the “cost incurred in the adjustment and payment of any claims for losses,” 42
U.S.C. section 4017(d)(1), so a lawsuit against a WYO carrier constitutes “the functional
equivalent of a suit against FEMA.” Van Holt v. Liberty Mut. Fire Ins. Co., 163 F.3d 161, 166-

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67 (3d Cir. 1998). Accordingly, a judgment against a WYO carrier, such as Defendant Wright
National Flood Insurance Company in the instant case, constitutes “‘a direct charge on the public
treasury.’” See Gowland v.Aetna, 143 F.3d 951, 955 (5th Cir. 1998) (quoting In re Estate of Lee,
812 F.2d 253, 256 (5th Cir. 1987) in a suit to recover benefits under a Standard Flood Insurance
Policy issued under the National Flood Insurance Act).
In cases like the instant one involving U.S. Treasury funds, no right to jury trial exists
unless Congress “clearly and unequivocally” expressed that right by statute. See Lehman v.
Nakshian, 453 U.S. 156, 160-62 (1981) (stating that “[i]t has long been settled that the Seventh
Amendment right to trial by jury does not apply in actions against the Federal Government, and
that a plaintiff is only entitled to a trial by jury with respect to cases involving U.S. Treasury
funds when Congress has “clearly and unequivocally departed from its usual practice” of
conditioning waiver of sovereign immunity upon the relinquishment of any claim to a jury trial
and has granted a right to trial by jury in the applicable statute). This court FINDS, as other
district courts have previously found, that Congress did not clearly and unequivocally grant the
right to trial by jury in the National Flood Insurance Act, 42 U.S.C. 4001, et seq. See, e.g.,
Kolner v. Dir. FEMA, 547 F. Supp. 828, 830 (N.D. Ill, 1982) (finding that the plaintiffs were not
entitled to a jury trial in an action for damages on a flood insurance contract issued under the
National Flood Insurance Act of 1968); Latz v. Gallagher, 550 F. Supp. 257, 257-58 (W.D.
Mich. 1982) (striking the jury demand in an action brought pursuant to the National Flood
Insurance Act of 1968); Ryan v. Selective Ins. Co. of Am., Case No. 13-6823, 2014 WL 2872089,
at *4 (D.N.J. June 23, 2014) (striking the jury demand because “Congress did not explicitly grant
the right to trial by jury in the National Flood Insurance Act”). Accordingly, the court FINDS
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that Plaintiff has no right to a jury trial; the court GRANTS the motion to quash the Plaintiff’s
jury demand and STRIKES that jury demand.
DONE and ORDERED this 21st day of April, 2016.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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