Hawk et al v. Hartford Insurance Company of the Midwest
Filing
28
ORDER granting in part and denying in part 18 Motion to Dismiss. Defendant Hartford Insurance Company of the Midwest's Rule 12(b)(1) and Rule (12)(b)(6) Motion to Dismiss (Doc. #18) is GRANTED on the Rule 12(b)(6) grounds and is otherwise DENIED. The case is DISMISSED WITHOUT PREJUDICE. Plaintiff Amy Hawk may file an amended complaint within twenty-one (21) days. Signed by Judge John E. Steele on 1/29/2025. (JGM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
AMY HAWK, individually and
as Personal Representative
of THE ESTATE OF DOUGLAS
HAWK,
Plaintiff,
v.
Case No:
2:24-cv-823-JES-NPM
HARTFORD INSURANCE COMPANY
OF THE MIDWEST,
Defendant.
OPINION AND ORDER
This matter comes before Court on the Rule 12(b)(1) and Rule
12(b)(6) Motion to Dismiss (Doc. #18) filed by Defendant Hartford
Insurance
Company
of
the
Midwest
operative Complaint (Doc. #1.)
(“Hartford”)
against
the
Plaintiff Amy Hawk (Plaintiff or
“Hawk”) 1 filed a Response in Opposition (Doc. #24.)
This is a contract dispute between a homeowner/insured, Hawk,
and an insurance company, Hartford, which issued a federal flood
insurance policy covering her residence. The residence was damaged
by flooding during Hurricane Ian, and Hartford paid an amount less
than the full coverage available under the policy. Hawk eventually
sued Hartford for additional payments.
Hartford seeks to dismiss
The Court recognizes that Amy Hawk appears in two capacities,
but will refer to her in the singular for present purposes.
1
the case, arguing that Hawk filed suit too late. Hartford contends
that the case’s untimeliness strips the Court of subject-matter
jurisdiction and precludes Hawk from stating a claim upon which
relief may be granted.
Hawk disagrees with both positions.
For the reasons set forth below, the motion is GRANTED as to
its 12(b)(6) grounds, and the case is dismissed without prejudice.
Plaintiff’s request to file an amended complaint is GRANTED.
The
remainder of the motion to dismiss, on 12(b)(1) grounds, is DENIED
at this time, but of course, subject-matter jurisdiction always
remains a live issue while a case is pending.
I.
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides
for
dismissal
jurisdiction.
of
an
action
if
a
court
lacks
subject-matter
Hartford makes a factual attack on jurisdiction,
which means that the Court may look outside the allegations in
Hawk’s
Complaint
and
consider
materials
pleadings, such as affidavits or testimony.
extrinsic
to
the
Efron v. Candelario,
110 F.4th 1229, 1234 n.5 (11th Cir. 2024).
A Rule 12(b)(6) motion to dismiss, on the other hand, is
normally more restrictive on what a court may consider.
In
deciding whether a complaint states a claim upon which relief may
be granted, 2 a district court considers the factual allegations in
Plaintiff’s Response incorrectly states that Rule 12(b)(6)
requires showing “that no relief could be granted under any set of
2
- 2 -
the
complaint
and
exhibits
attached
to
the
complaint
or
incorporated into the complaint by reference. MSP Recovery Claims,
Series LLC v. Metro. Gen. Ins. Co., 40 F.4th 1295, 1303 (11th Cir.
2022) (citation omitted); Grossman v. Nationsbank, N.A., 225 F.3d
1228, 1231 (11th Cir. 2000).
A court may also consider evidence
outside the complaint if the evidence satisfies the incorporationby-reference doctrine or is properly subject to judicial notice.
Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322
(2007); Swinford v. Santos, 121 F.4th 179, 187-88 (11th Cir. 2024).
Under the former doctrine, extrinsic material referenced in
a complaint and attached to a motion to dismiss may be considered
if
(1)
it
is
central
to
the
authenticity is unchallenged.
plaintiff’s
claim
and
(2)
its
Horsley v. Feldt, 304 F.3d 1125,
1134 (11th Cir. 2002); Jackson v. City of Atlanta, Georgia, 97
F.4th 1343, 1350 (11th Cir. 2024).
However, when the latter two
prongs are met, extrinsic materials may be considered even if not
mentioned in, nor attached to, a complaint.
Maxcess, Inc. v.
Lucent Techs., Inc., 433 F.3d 1337, 1340 n.3 (11th Cir. 2005);
Julmist v. Prime Ins. Co., 92 F.4th 1008, 1016 (11th Cir. 2024)
facts that could be proved consistent with the allegations.” (Doc.
#24, p. 5.) While that was once the standard, it is no longer so.
“Rather, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its face. And factual allegations that are merely consistent with
a defendant’s liability fall short of being facially plausible.”
M.H. v. Omegle.com LLC, 122 F.4th 1266, 1275–76 (11th Cir. 2024)
(internal punctuation and citations omitted).
- 3 -
(affirming a district court’s consideration of an insurance policy
that an insurer attached to a motion to dismiss).
In this case, there is no material difference in what the
Court may consider under Rule 12(b)(1) or Rule 12(b)(6).
Both
parties essentially rely on the same set of extrinsic materials
and do not dispute the authenticity or accuracy of any document.
Given the intertwined issues and facts, the Court may decide the
jurisdictional and the substantive aspects of the motion together.
See, e.g., Brownback v. King, 592 U.S. 209, 217 (2021).
II.
Plaintiff’s
single-family
primary
residence
in
Sanibel,
Florida was insured by Policy No. 8705080078 (the “Policy”), a
Standard Flood Insurance Policy (“SFIP”) issued by Hartford. (Doc.
#1-1, p. 2; Doc. #24-1.)
Hartford is a Write-Your-Own (“WYO”)
insurance carrier, and issued the Policy pursuant to the National
Flood Insurance Program (“NFIP”).
(Doc. #1, ¶ 8.)
The Federal
Emergency Management Agency (“FEMA”) administers the NFIP pursuant
to the National Flood Insurance Act (“NFIA”).
(Id. at ¶ 1.) 3
Congress enacted the NFIA in 1968 to provide affordable flood
insurance in areas where it is uneconomical for the private market
to do so. Fla. Key Deer v. Paulison, 522 F.3d 1133, 1136 (11th
Cir. 2008). The NFIA authorizes FEMA to establish and administer
the NFIP. Id. FEMA uses WYO companies like Hartford to assist in
the issuance and administration of SFIPs. Newton v. Capital Assur.
Co., 245 F.3d 1306, 1308 (11th Cir. 2001). As “fiscal agents” of
the United States, WYO companies must strictly adhere to SFIP
requirements and adjust claims in accordance with NFIP guidelines.
Id. at 1311–12. Also, “the insured must adhere strictly to the
3
- 4 -
Under the Policy, Hartford/FEMA agreed to pay Hawk “for direct
physical loss by or from flood to your insured property” under
certain conditions, one of which was that Hawk “[c]omply with all
terms and conditions” of the Policy.
(Doc. #1-1, p. 5.)
The
Policy provided building coverage (Coverage A) of $250,000 (with
a $5,000 deductible) and contents coverage (Coverage C) of $50,000
(with a $2,000 deductible).
On
September
28,
(Id. at 2.)
2022,
Hawk’s
residence
was
damaged
flooding from Hurricane Ian. (Doc. #1, ¶ 12; Doc. #24, ¶ 3.)
by
The
Policy required Hawk to give Hartford “prompt written notice” of
a flood loss to the insured property. (Doc. #1-1, p. 22.) Although
the record does not establish a date or the details, the Complaint
asserts that Hawk “timely reported the[] claim to Defendant in
accordance with the Insurance Contract.”
(Doc. #1, ¶ 13.)
This
factual assertion has not been contested by Hartford.
Ian Memorandum.
On October 6, 2022, FEMA’s Acting Assistant
Administrator issued a Memorandum (the “Ian Memorandum”) (Doc. #12; Doc. #24-2) announcing temporary changes to the claims process
for Hurricane Ian claims.
•
Normally, before receiving a claim payment, an SFIP
policyholder must first submit a signed proof of loss;
alternatively, at the insurer’s option, the insurer may
accept a signed adjuster’s report instead of a signed proof
requirements of the [SFIP] before any monetary claim can be awarded
against the government.”
Sanz v. U.S. Security Inc., Co., 328
F.3d 1314, 1318 (11th Cir. 2003).
- 5 -
of loss. The Ian Memorandum provided that NFIP insurers
“must” exercise the option to accept their adjuster’s
report to evaluate and pay a claim instead of requiring a
signed proof of loss. The requirement that a policyholder
must sign the adjuster’s report was also “conditionally
waive[d].” (Doc. #24-2, p. 1 & n.1.)
•
To issue payments under the conditional waiver, insurers
had to provide policyholders with a copy of the adjuster’s
report supporting the claim payment, a written explanation
if the payment was less than the adjuster’s report, and an
Adjuster Report Claim Payment (“ARCP”) Letter of certain
form and substance. (Id. at 1.)
•
The ARCP Letter needed to include the amounts that the
adjuster had determined the insured was owed for building
and contents coverage, a breakdown of the covered flood
claim, and a statement that the insurer had exercised its
option to accept the adjuster’s report instead of a signed
proof of loss. (Id. at 3.)
•
The ARCP Letter also had to state:
Accepting this payment does not waive any of your
rights to seek further payments under your flood
insurance policy. If you find additional flood damage
that was not included in the adjuster’s estimate or
if the cost to repair the flood damage exceeds the
adjuster’s estimate, you may request an additional
payment in accordance with the terms and conditions
of the [SFIP]. (Id.)
•
NFIP insurers were allowed to make more than one payment
on a claim using this conditional waiver, which was
effective through the expiration of the applicable deadline
to submit a proof of loss. (Id. at 1.)
•
Policyholders were allowed to submit a signed proof of loss
with supporting documents when they disagreed with the
adjuster’s report. (Id. at 2.)
•
“To allow enough time for policyholders to evaluate their
losses and the adjusters’ reports,” the standard 60-day
proof-of-loss filing deadline for Hurricane Ian claims was
extended to 365 calendar days from the date of loss. (Id.)
- 6 -
Hartford assigned an insurance adjuster to inspect the Hawk
residence.
(Doc. #1, ¶ 17.)
The adjuster prepared an estimate of
the damage, which was submitted to both parties, and that Hartford
used to evaluate and pay the claim.
On January 27, 2023, Hartford emailed Hawk a Notice
Notice.
with the subject line “Closed Claim Status.”
The
Notice
Hartford
updated
had
the
issued
status
and
of
mailed
Hawk’s
two
(Doc. #18-2, p. 1.)
claim,
checks
$50,000.00) as payment for Hawk’s claim.
stating
that
($156,458.22
and
(Id.)
January 26, 2023, Letter. Appended to the Notice was a letter
dated January 26, 2023 (the “1.26.23 Letter”).
(Id. at 2-3.)
There, Hartford stated, “[w]e have exercised our option to accept
your adjuster’s report of your flood loss instead of a signed proof
of loss to evaluate and pay your claim.”
(Id. at 2.)
Hartford
then explained that it had determined that Hawk was only owed
$156,458.22 in building coverage (Coverage A) and $50,000 in
contents coverage (Coverage C), or $206,458.22 of the $300,000 in
total coverage available under the Policy.
(Id.)
The letter
further stated, “[y]our adjuster should have provided a copy of
the damage estimate that supports this payment. Please carefully
review
the
report
and
contact
your
adjuster
to
discuss
any
questions. If you did not receive this estimate, please contact
your adjuster or our office and a copy will be provided.”
(Id.)
The letter also informed Hawk that the adjuster had reported
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damage to landscaping, but that Hartford had rejected that portion
of the claim.
(Doc. #18-2, p. 2.)
Hartford explained that “land
is not covered . . . so your claim for payment to repair or replace
your landscaping is denied.”
(Id.) (emphasis added).
Hartford
cited the following Policy language to justify the denial:
IV. PROPERTY NOT INSURED
We do not insure any of the following:
1. Personal property not inside a building.
(Id.)(emphasis added.)
The letter also stated, as required by the Ian Memorandum,
that by accepting payment Hawk was not waiving any of her rights
to seek “further payments” under the Policy.
explained
that
Hawk
could
request
“an
(Id.)
additional
The letter
payment
in
accordance with the terms and conditions of the [SFIP]” if (1) she
discovered “additional flood damage that was not included in the
adjuster’s estimate,” or (2) “the cost to repair the flood damage
exceeds the adjuster’s estimate.”
Policyholder Rights Form.
(Id. at 2–3.)
Appended to the Notice and the
1.26.23 Letter was a form entitled “Policyholder Rights” which
notified Hawk of her options following Hartford’s partial denial
of her claim.
(Id. at 4.)
The options included the ability to
administratively appeal the decision or “to file suit . . . within
one year of when your insurer first denied all or part of your
claim.”
(Id.) (emphasis added).
August 25, 2023, Amended Proof of Loss.
- 8 -
On August 25, 2023,
Hawk signed an Amended Proof of Loss.
(Doc. #1-3, p. 2.) The
amended proof of loss, which included supporting documents, sought
$235,000 in building coverage and $44,000 in contents coverage,
for a total of $279,000.
(Id.)
Based on the amended proof of
loss, Hawk asserted that flooding had damaged the residence in an
amount and scope greater than the adjuster’s estimate (Doc. #1, ¶
20), and that numerous covered items were omitted or underpaid.
(Id. at ¶ 21.)
September
12,
2023,
Request
for
Supplemental
Payment.
Stellar Public Adjusting Services (“SPAS”) informed Hartford in a
September 12, 2023, letter that it represented Hawk and was making
a formal request for a supplemental payment of $151,642.66 for
Coverage A (Dwelling) loss.
the
Request
were
(Doc. #24-4, pp. 3–4)
supporting
amended proof of loss.
documents,
including
Attached to
the
signed
(Id. at 1-2.)
May 29, 2024, Letter.
In a letter dated May 29, 2024 (the
“1.29.24 Letter”), Hartford stated, “[w]e uphold our previous
denials as stated in the denial letter sent to you dated January
26, 2023.”
(Doc. #18-3, p. 1.)
Hartford explained that after
reviewing SPAS’s Request and supporting documents, it “found no
missing insured items and no documentation of incurred costs.”
(Id.)
Hartford also stated, “[w]e received a signed proof of loss
on September 25, 2023, in the amount of $279,000.
We reject [it].”
(Id.) It also discussed a Storm One Claims Report submitted with
- 9 -
the amended proof of loss, and explained that the items identified
in the Report were not covered by the Policy for various reasons.
(Id. at 2.)
June 21, 2024, Letter.
Hawk later submitted additional
documentation to Hartford through SPAS.
In a letter dated June
21, 2024 (the “6.21.24 Letter”), Hartford responded, “[w]e uphold
our previous denials as stated in the denial letter sent to you
dated January 26, 2023 4 and May 29, 2024,” and again denied coverage
for the additional invoices.
(Doc. #18-4, p. 1.)
III.
On September 11, 2024 5, Hawk filed a one count breach-ofinsurance-contract claim against Hartford.
(Doc. #1, pp. 5–6.)
Hawk asserts that the adjuster’s estimate failed to comply with
the Policy’s provisions, Hartford’s own claims handling standards,
and the NFIP Claims Manual.
(Id. at ¶ 18.)
Hawk also alleges
that Hartford breached the Policy by failing to adjust her claim
promptly and fairly, to reach agreement on the amount of covered
damages, and to pay the full amount she was owed.
(Id. at ¶ 29.)
Hartford moves to dismiss the sole breach of contract count
under Rule 12(b)(1) for lack of subject-matter jurisdiction and
The letter actually says “January 26, 2024” but this is an
apparent typographical error.
4
Plaintiff’s Response states that the Complaint was filed on
September 25 and September 19, 2024.
(Doc. #24, p. 5, 17.)
September 11, 2024, is the correct date.
5
- 10 -
under Rule 12(b)(6) for failure to state a claim upon which relief
may be granted.
Both rely on the same argument: Hawk’s lawsuit
was not filed within one year of Hartford’s partial denial of her
claim
on
January
26,
2023,
and
is
therefore
barred
by
the
applicable statute of limitations.
A.
The applicable statute of limitations provides:
In the event the program is carried out as provided in
section 4071 of this title, the Administrator shall be
authorized to adjust and make payment of any claims for
proved and approved losses covered by flood insurance,
and upon the disallowance by the Administrator of any
such claim, or upon the refusal of the claimant to accept
the amount allowed upon any such claim, the claimant,
within one year after the date of mailing of notice of
disallowance
or
partial
disallowance
by
the
Administrator, may institute an action against the
Administrator on such claim in the United States
district court for the district in which the insured
property or the major part thereof shall have been
situated, and original exclusive jurisdiction is hereby
conferred upon such court to hear and determine such
action without regard to the amount in controversy.
42 U.S.C. § 4072 (emphasis added).
A similar one-year limitation
period appears in Part VII.O of the Policy: “If you do sue, you
must start the suit within one year after the date of the written
denial of all or part of the claim.”
(Doc. #1-1, p. 26) (emphasis
in original).
As Hawk states, the only substantive issue presented “is when
the one-year statute of limitations period imposed by 42 U.S.C. §
4072 began to run.”
(Doc. #24, p. 14.)
- 11 -
Hartford maintains that
the statute of limitations was triggered by the 1.26.23 Letter’s
partial denial of Hawk’s claim, and therefore, that this September
11, 2024, lawsuit was untimely.
(Doc. #18, pp. 8-11.)
Hawk
responds that the 1.26.23 Letter did not trigger the one-year
limitations period; rather, it was triggered by the 5.29.24 Letter.
Therefore, Hawk argues, her September 11, 2024, lawsuit was timely.
(Doc. #24, pp. 6-7, 17-18.)
Hawk’s argument (id. at 8-18) goes like this: There could be
no breach-of-contract action until Hawk requested something under
the Policy and Hartford refused that request.
Insurance carriers
like Hartford typically require insureds like Hawk to submit a
sworn proof of loss within 60 days of the loss, and thereafter
make their determinations concerning coverage and payment based on
the proof of loss.
In the typical situation, the date of the
mailing of a notice of complete or “partial” disallowance of the
claim “does . . . trigger the one year limitations period imposed
by 42 U.S.C.A. § 4072.”
(Id. at 12.)
But the 1.26.23 Letter, Hawk continues, did not trigger the
one-year period because she had not yet submitted a proof of loss
making any request of Hartford.
Hawk notes that the letter stated
that she could request additional payment in accordance with the
SFIP’s terms and conditions if she found additional flood damage
not included in the adjuster’s estimate or if the costs of repair
exceeded the adjuster’s estimate.
- 12 -
Hawk submitted such a request
on September 12, 2023, which included a signed amended proof of
loss.
From this, Hawk concludes that at the time of the 1.26.23
Letter there was no dispute between her and Hartford on the scope
of the covered damages.
“As a result, here, where the Defendant
initially paid Plaintiffs $156,458.22 for covered damages, without
knowledge of the sworn proof of loss and supplemental request for
payment, there was no actionable dispute to bring, and any lawsuit
by the Plaintiffs against the Defendant at the time would have
been dismissed as premature.”
(Id. at 12-13.)
Hawk further argues that the Ian Memorandum’s extension of
time to file a proof of loss from 60 days to 365 days gave her
until September 28, 2023, “to file any proof of loss disagreeing
or contradicting the scope and value of the loss, creating an issue
of dispute.”
(Id. at 13.)
Hawk asserts that no dispute existed
until September 12, 2023, when the supplemental request for damages
(including the amended proof of loss) was submitted.
(Id.)
Hawk
asserts that Hartford’s 5.29.24 Letter was therefore the first
time that Hartford refused to perform under the Policy, thereby
giving rise to an actionable dispute.
(Id.)
Hawk agrees that the “continued adjustment of a claim . . .
after the carrier’s initial determination does not re-start the
one[-]year limitations period imposed by Federal law.”
p. 15) (emphasis added).
521
(9th
Cir.
1988)
(Doc. #24,
See Wagner v. Dir., FEMA, 847 F.2d 515,
(explaining
- 13 -
that
once
the
statute
of
limitations
is
triggered,
“reconsideration
of
that
denial
or
responding to further inquiries about the case has no effect on
the running of the limitations period.”)
She argues, however,
that there was no initial determination until after her amended
proof of loss was rejected, which makes the 5.29.24 Letter the
first relevant denial for limitations purposes.
(Doc. #24, p.
15.)
B.
Hawk’s main premises – that she did not make a request under
the Policy until she submitted the amended proof of loss on
September 12, 2023, and that her claim was not partially disallowed
until
she
received
the
5.29.24
Letter
–
are
refuted
by
the
Complaint’s allegations and the extrinsic documents that the Court
may properly consider.
The following facts are established:
•
When Hawk’s residence was damaged by flooding during
Hurricane Ian on September 28, 2022, it was covered by
the Policy.
•
Within the time-period required by the Policy, Hawk
submitted a claim for monetary damages to Hartford.
•
Hartford exercised its option, as required by the Ian
Memorandum, to accept an adjuster’s estimate in lieu of
requiring Hawk to file a proof of loss.
•
An adjuster inspected Hawk’s residence and prepared an
estimate of damages being sought by Hawk as covered
losses under the Policy. That estimate included money
for damaged landscaping.
•
The adjuster’s estimate was forwarded to Hartford, which
acted on it in making its coverage decisions.
- 14 -
•
On January 26, 2023, Hartford denied coverage for
landscaping and concluded that the amounts of the
covered losses were only $156,458.22 and $50,000.00. On
January 27, 2023, Hartford prepared and mailed two
checks in those amounts to Hawk.
•
The 1.26.23 Letter specifically stated that Hartford was
denying part of Hawk’s claim, and advised Hawk of her
rights, including to file a federal lawsuit within a
year of the partial disallowance.
•
The 1.26.23 Letter also advised Hawk, consistent with
the Ian Memorandum, that she could seek supplemental
payments for up to a year after the loss.
•
On September 25, 2023, Hawk submitted her first
supplemental request, which included the amended proof
of loss. It was denied in the 5.29.24 Letter.
Hawk made a request of Hartford under the Policy that was
partially denied in the 1.26.23 Letter.
She filed a written claim
as the Policy required, and used the adjuster’s estimate to obtain
$206,458.22 from Hartford.
Hartford’s Letter referencing those
payments informed Hawk that part of her claim had been denied.
It
clearly and unambiguously stated, “land is not covered . . . so
your claim for payment to repair or replace your landscaping is
denied,” and informed Hawk of her right to administratively appeal
or to sue “within one year of when [Hartford] first denied all or
part of [her] claim.”
(Doc. #18-2, pp. 2, 4) (emphasis added).
This was clearly a partial denial of Hawk’s claim.
See
McInnis v. Liberty Mut. Fire Ins. Co., No. 22-30022, 2022 WL
4594609, at *3 (5th Cir. Sept. 30, 2022) (deeming a claim denied
when a letter stated that “content items that were not supported
- 15 -
by photographs were not able to be included in your claim,”
referred to that as a “decision to deny coverage,” and informed
claimant of her right to administratively appeal any portion of
the denied claim); Lionheart Holding GRP v. Phila Contrib. Ship
Ins. Co., 368 F. App’x 282, 283–85 (3d Cir. 2010) (deeming a claim
denied when a letter stated that claimant’s house was not covered
and informed claimant of its one-year deadline to sue).
Hawk’s
subsequent supplemental requests did not change the date of the
first disallowance.
McInnis, 2022 WL 4594609, at *2–3 (rejecting
claimant’s argument that the subsequent rejection of a proof of
loss extended the statutory clock); Lionheart, 368 F. App’x at
284–85 (rejecting claimant’s argument that a subsequent letter
altered, varied, or waived the limitations period).
Hawk also asserts that the only two situations in which she
could have instituted an action was upon the “disallowance by the
Administrator of any such claim” or “the refusal of the claimant
to accept the amount allowed upon any such claim.”
4072.
42 U.S.C. §
Hawk argues that neither situation was present following
the 1.26.23 Letter.
present.
(Doc. #24, pp. 15-16.)
Actually, both were
As discussed earlier, the Complaint and other relevant
documents clearly establish that there was a partial disallowance
on January 26, 2023.
And although Hawk accepted the checks, she
refused to accept the amount that Hartford had deemed proper to
resolve her claim.
Therefore, a lawsuit filed immediately after
- 16 -
Hawk received the 1.26.23 Letter would not have been premature.
Hawk further asserts that her September 12, 2023, submission
was not a request for Hartford to reconsider its prior position,
but
one
for
“additional
previously requested.”
indemnification
(Id. at 17.)
and
assistance
not
It was therefore Hartford’s
5.29.24 Letter in response to that request, Hawk argues, that
triggered the one-year limitations period.
(Id.)
Hawk’s statement about her September 12, 2023, submission is
only partially correct, and even that part is not material.
Her
submission was at least in part a request to reconsider Hartford’s
prior position.
She sought to recover $300,225.70 for damages to
the dwelling, noting that Hartford had already paid $148,583.04
towards those damages.
(Doc. #24-4, p. 3.)
Referring to the
September 21, 2023, submission, the Complaint states that Hawk’s
“expert found evidence that the flooding damaged the Residence in
an amount and scope greater than what was found by Defendant’s
adjuster” and that “[n]umerous covered items were omitted and/or
underpaid by Defendant.”
(Doc. #1, ¶¶ 20-21.)
The September 21,
2023, submission also sought additional money on items previously
requested of Hartford, where Hawk disputed the amount disbursed.
“A policyholder has only one claim from a flood event regardless
of the number of proofs of loss and amount of documentation the
policyholder may submit in support of that claim.”
McInnis, 2022
WL 4594609, at *2 (some emphasis removed) (quoting FEMA, National
- 17 -
Flood Insurance Program Claims Manual at 68 (Oct. 2021)).
The Court concludes that the one-year limitations period was
triggered by Hartford’s partial denial of Hawk’s claim in the
1.26.23 Letter, and that the limitations period was not waived,
extended, or re-triggered by the subsequent, supplemental requests
and the resulting denial letters. 6
The present lawsuit, filed
twenty months after the date of mailing of Hartford’s first notice
of partial disallowance of Hawk’s claim, is barred by the statute
of limitations.
C.
Having decided that this lawsuit was untimely, the question
still remains as to whether that untimeliness has jurisdictional
implications.
Hartford argues that because it is a fiduciary and
fiscal agent of FEMA, a federal agency, sovereign immunity applies,
and so Hawk must comply with all pre-conditions to a waiver of
sovereign immunity, including the limitations period.
Hawk’s
failure to do so, Hartford argues, means that her suit is barred
by sovereign immunity principles, and hence the violation is
jurisdictional in nature.
A
complaint
alleging
(Doc. #18, pp. 9–10 & n.33.)
breach
of
an
SFIP
satisfies
the
Although some district courts have required a proof of loss
to be filed before the denial of a claim can trigger the statute
of limitations, W. End Harbor Condo. Ass’n, Inc. v. Wright Nat’l
Flood Ins. Co., No. 5:20CV303-TKW-MJF, 2022 WL 18936050, at *4 &
n.8 (N.D. Fla. July 18, 2022) (collecting cases), the Court does
not find their reasoning persuasive.
6
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jurisdictional requirements of 28 U.S.C. § 1331 by raising a
substantial federal question on its face. Newton v. Capital Assur.
Co., Inc., 245 F.3d 1306, 1309 (11th Cir. 2001).
“But just because
a court can hear all cases involving federal questions does not
mean it can adjudicate all disputes. One limitation on a court’s
ability to answer these questions is sovereign immunity.”
Walker
v. Sec’y of the Army, No. 23-14229, 2024 WL 4635382, at *2 (11th
Cir. Oct. 31, 2024).
“Sovereign immunity is jurisdictional in
nature.” FDIC v. Meyer, 510 U.S. 471, 475 (1994); Dupree v. Owens,
92 F.4th 999, 1005 (11th Cir. 2024) (same).
The Supreme Court has spent several decades categorizing
different types of time limits and their effect, or lack of effect,
on a federal court’s jurisdiction.
of
time
limits:
claim-processing
(i)
It “has identified three types
jurisdictional
rules;
and
(iii)
deadlines;
(ii)
time-related
mandatory
directives.”
McIntosh v. United States, 601 U.S. 330, 337 (2024).
Only the
first two types are asserted as options in this case.
The Supreme Court has categorized several limitations periods
and other filing deadlines as non-jurisdictional claim-processing
rules.
Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393
(1982) (filing a timely charge of discrimination with the EEOC);
Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 431 (2011)
(120-day deadline to file a notice of appeal); Sebelius v. Auburn
Reg’l Med. Ctr., 568 U.S. 145, 148–49 (2013) (180-day period to
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file administrative appeal); United States v. Wong, 575 U.S. 402,
405 (2015) (2-year and 6-month FTCA filing deadlines); Musacchio
v. United States, 577 U.S. 237, 246–48 (2016) (5-year limitation
for criminal prosecutions); Hamer v. Neighborhood Hous. Servs. of
Chicago, 583 U.S. 17, 27 (2017) (30-day limit on extensions to
file notice of appeal); Boechler, P.C. v. Comm’r of Internal
Revenue, 596 U.S. 199, 202 (2022) (30-day limit to file petition
for review of administrative decision); Wilkins v. United States,
598 U.S. 152, 155–56 (2023) (12-year limit to sue the United States
under the Quiet Title Act).
But because nothing is ever simple, the Supreme Court has
also
recognized
the
existence
of
limitations that are jurisdictional.
some
“special”
statutes
of
John R. Sand & Gravel Co. v.
United States, 552 U.S. 130, 132–139 (2008).
A court treats a statute of limitations as jurisdictional
only if Congress has clearly stated so.
To determine whether
Congress has made the requisite clear statement, a court examines
the
text,
provision.
context,
and
Congress
relevant
need
not
historical
“incant
magic
treatment
of
the
words,”
but
the
traditional tools of statutory construction “must plainly show
that
Congress
consequences.”
imbued
a
procedural
bar
with
jurisdictional
Boechler, 596 U.S. at 203 (citations omitted).
Sovereign immunity must be considered in the litigation of
WYO policies, because all “[c]laims are ultimately paid out of the
- 20 -
U.S. Treasury.”
Gallup v. Omaha Prop. & Cas. Ins. Co., 434 F.3d
341, 342 (5th Cir. 2005); see also Sandia Oil Co. v. Beckton, 889
F.2d 258, 263–64 (10th Cir. 1989); Newton, 245 F.3d at 1312
(“preliminary
responsibility
is
a
mirage
when
the
federal
government . . . always foot[s] the full bill in the end”).
At
least one appellate court opinion could suggest that Section 4072’s
one-year filing requirement is a “condition on the [United States’]
waiver of sovereign immunity.”
EC Term of Years Trust v. United
States, 434 F.3d 807, 808 n.3 (5th Cir. 2006) (quoting Block v.
North Dakota, 461 U.S. 273, 287 (1983)); see also Newton, 245 F.3d
at 1309, 1312 (barring “prejudgment interest awards against WYO
companies” under the “no-interest rule” of sovereign immunity).
But Congress has not clearly stated that Section 4072 is
jurisdictional.
Neither the text nor the context of the statute,
or its relevant historical treatment, demonstrate an intent to
imbue this procedural rule with jurisdictional consequences.
The
Supreme
an
Court
has
more
recently
undermined
the
idea
that
untimely lawsuit results in a loss of subject-matter jurisdiction,
even where sovereign immunity is otherwise applicable: although “a
condition
to
the
waiver
of
sovereign
immunity . . .
must
be
strictly construed . . . time limits accompanying such waivers are
[not] necessarily jurisdictional.”
Wilkins, 598 U.S. at 162
(citations and internal quotation marks omitted).
The
Court
thus
concludes
that
- 21 -
Hawk’s
failure
to
show
compliance with Section 4072 does not divest the Court of subjectmatter jurisdiction.
This portion of Hartford’s motion to dismiss
is therefore DENIED.
D.
Plaintiff requests an “opportunity to amend” her complaint.
(Doc. #24, p. 18.)
Rule 15(a)(2) provides that courts should
“freely give” parties leave to amend.
Fed. R. Civ. P. 15(a)(2).
The Court cannot say at this point that amendment would necessarily
be futile, so an opportunity to amend will be GRANTED.
Accordingly, it is now
ORDERED:
1. Defendant Hartford Insurance Company of the Midwest’s Rule
12(b)(1) and Rule 12(b)(6) Motion to Dismiss (Doc. #18) is
GRANTED on the Rule 12(b)(6) grounds and is otherwise
DENIED.
2. The case is DISMISSED WITHOUT PREJUDICE.
3. Plaintiff Amy Hawk may file an amended complaint within
twenty-one (21) days.
DONE AND ORDERED at Fort Myers, Florida, this
January 2025.
Copies: Parties of record
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29th
day of
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