Sosa v. Wright National Flood Insurance Company

Filing 34

ORDER: Defendant Wright National Flood Insurance Company's Motion for Summary Judgment (Doc. # 33 ) is GRANTED. Plaintiff Jorge Sosa's claim for insurance benefits is dismissed with prejudice based on his failure to timely file a sworn Proof of Loss. The Clerk is directed to enter Judgment in Defendant Wright National Flood Insurance Company's favor and thereafter shall CLOSE THE CASE. Signed by Judge Virginia M. Hernandez Covington on 4/17/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JORGE ABREU SOSA,
Plaintiff,
v.

Case No. 8:16-cv-1283-T-33TGW

WRIGHT NATIONAL FLOOD INSURANCE
COMPANY,
Defendant.
________________________________/
ORDER
This matter comes before the Court pursuant to Defendant
Wright National Flood Insurance Company’s Motion for Summary
Judgment (Doc. # 33), which was filed on February 10, 2017.
Plaintiff Jorge Abreu Sosa, an individual represented by
counsel, failed to file a response in opposition to the Motion
and the time to do so has expired.

The Court, accordingly,

considers the Motion for Summary Judgment as an unopposed
Motion.
However, this Court is not permitted to grant the Motion
for Summary Judgment solely because such Motion is unopposed.
Minhngoc P. Tran v. Boeing Co., 190 Fed. Appx. 929, 932 (11th
Cir. 2006)(“[A] district court cannot grant summary judgment
just because the motion was unopposed, but must at least
review all the evidentiary materials submitted in support of

the motion for summary judgment to ensure the motion is
supported.”).
Here, the Court grants the Motion based upon its review
of the entire record, viewing the evidence in the light most
favorable to Sosa as the non-movant, and based upon its
finding that Wright is entitled to judgment as a matter of
law.
I.

Factual Background and Procedural History
Wright, while acting in its capacity as a Write-Your-Own

Program insurance carrier participating in the United States
government’s National Flood Insurance Program, issued Sosa a
Standard Flood Insurance Policy. (Doc. # 33-2).
Number is 09 1151252266 00. (Id.).

The Policy

The property insured is

located at 6001 Wilshire Drive, Tampa, Florida 33615. (Id.).
The Policy provided Building Coverage of $62,200, subject to
a $5,000 deductible and Contents Coverage of $4,900, subject
to a $5,000 deductible. (Id.; Carolann Whitfield Aff. Doc. #
33-3 at ¶ 5).

The insured property was damaged in a flood on

August 3, 2015. (Doc. # 1 at ¶ 7).

Sosa notified Wright of

the damage on August 7, 2015. (Carolann Whitfield Aff. Doc. #
33-3 at ¶ 6).
Article VII(j)(4) of the Policy required Sosa to file a
Proof of Loss with Wright as follows:
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J.
Requirements in Case of Loss
In case of a flood loss to insured property, you
must:
. . . .
4.
Within 60 days after the loss, send us a proof
of loss, which is your statement of the
amounts you are claiming under the policy
signed and sworn to by you, and which
furnishes us with the following information:
a.
The date and time of loss;
b.
A brief explanation of how the loss happened;
c.
Your interest (for example, “owner”) and the
interest, if any, of others in the damaged
property;
d.
Details of any other insurance that may cover
the loss;
e.
Changes in title or occupancy of the covered
property during the term of the policy;
f.
Specifications of damaged
buildings
and
detailed repair estimates;
g.
Names of mortgagees or anyone else having a
lien, charge, or claim against the insured
property;
h.
Details about who occupied any insured
building at the time of loss and for what
purpose; and
i.
The inventory of damaged personal property
described in J.3 above.
(Doc. # 33-2 at 33-34)(emphasis in original).

Sosa never

provided a sworn Proof of Loss to Wright. (Carolann Whitfield
Aff. Doc. # 33-3 at ¶¶ 10, 12).

With a loss date of August 3,

2015, the Proof of Loss was due by October 3, 2015. (Id. at ¶
11).
On

August

7,

2015,

John

Boulageris,

an

independent

adjuster with Colonial Claims determined that the damaged
portion of the Property was located in the “basement” as

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defined in the Standard Flood Insurance Policy. (Boulageris
Report Doc. # 33-6). Boulageris found that the covered damage
to the basement area totaled $2,370.50. (Id. at 7).

After

subtracting the $5000 Policy deductible, no payments were made
to Sosa. (Carolann Whitfield Aff. Doc. # 33-3 at ¶ 8).
Thereafter, Boulageris completed an updated report with an
estimate totaling $4,565.75 in damages. (Boulageris Second
Report Doc. # 33-7).

However, since that amount was also

below the $5,000 Policy deductible, no payments were made to
Sosa.
On October 20, 2016, Robert Breedlove, a Florida licensed
Professional Surveyor and Mapper, inspected Sosa’s Property.
Breedlove’s measurements revealed that the floor of the lower
level of the Property is below ground on all four sides.
(Breedlove Aff. Doc. # 33-8 at ¶ 8). As stated in Breedlove’s
Affidavit, “the lowest floor of the Property is a ‘basement’
as defined by the Standard Flood Insurance Policy.” (Id. at ¶
9). Sosa testified during his deposition that the lower level
of his property was “below ground.” (Sosa Dep. Doc. # 33-9 at
17).
Sosa filed suit against Wright in state court alleging
that Wright breached the Insurance Policy by failing to pay
Sosa’s claims. (Doc. # 2).

Wright removed the case to this
4

Court

because

Wright

participates

in

the

National

Flood

Insurance Program’s Write-Your-Own Program and this program is
created pursuant to the National Flood Insurance Act. 42
U.S.C. § 4001. As stated in the Notice of Removal, “this Court
has original exclusive jurisdiction over this matter pursuant
to 42 U.S.C. § 4072 and 44 C.F.R. Part 61, App. A(1), Article
VII(R), which vests in the United States District Court for
the district in which the insured property is located with
exclusive subject-matter jurisdiction, without regard to the
amount in controversy, over cases arising out of a disputed
flood insurance claim under the NFIP.” (Doc. # 1 at ¶ 6).
Wright

seeks

an

Order

dismissing

Sosa’s

claim

for

insurance benefits based on Sosa’s failure to submit a timely
sworn Proof of Loss.

In the alternative, and if the Court

finds against Wright on the Proof of Loss issue, Wright seeks
an order finding that the area of the property damaged by the
flood was a “basement,” as defined by the Policy.
II.

Summary Judgment Standard
Summary judgment is appropriate if the pleadings, the

discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a).
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An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.

Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)).

A fact is material if

it may affect the outcome of the suit under the governing law.
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997).
The Court must draw all inferences from the evidence in
the light most favorable to the non-movant and resolve all
reasonable doubts in that party’s favor.
461 F.3d 1315, 1320 (11th Cir. 2006).

See Porter v. Ray,

The moving party bears

the initial burden of showing the Court, by reference to
materials

on

file,

that

there

are

no

genuine

material fact that should be decided at trial.

issues

See id.

of

When

a moving party has discharged its burden, the non-moving party
must then go beyond the pleadings, and by its own affidavits,
or by depositions, answers to interrogatories, and admissions
on file, designate specific facts showing there is a genuine
issue for trial.

See id.

III. Analysis
Congress underwrites all operations of the National Flood
Insurance Program, including claims adjustment, through the
6

United States Treasury. 42 U.S.C. § 4017(d)(1). Consequently,
the federal government pays all flood insurance claims and
reimburses

Write-Your-Own

Program

insurers

their

costs,

including defense costs, for the adjustment and payment of
claims. Grissom v. Liberty Mut. Fire Ins. Co., 678 F.3d 397,
402 (5th Cir. 2012); see also Newton v. Capital Assur. Co.
Ins., 245 F.3d 1306, 1312 (11th Cir. 2001).
Because the federal government pays all of the claims,
all conditions precedent must be fulfilled before receiving
benefits under a Standard Flood Insurance Program Policy. See
Sanz v. U.S. Sec. Ins. Co., 328 F.3d 1314, 1319 (11th Cir.
2003)(“[T]he insured must adhere strictly to the requirements
of the standard federal flood insurance policy before any
monetary claim can be awarded against the government.”).
Just like in the Sanz case, Sosa failed to furnish the
insurer with a sworn and timely Proof of Loss.

When faced

with this issue, the Eleventh Circuit decisively held that
“Sanz’s failure to file a proof of loss within 60 days without
obtaining a written waiver of the requirement eliminates the
possibility of recovery.” Id.; see also Lucien v. U.S. Sec.
Ins., 143 Fed. Appx. 152, 153 (11th Cir. 2005)(affirming
summary judgment in favor of insurer when insured failed to
file a proof of loss form and finding “an insured is required
7

to unwaveringly adhere to the rules and regulations associated
with a federal insurance policy”).
It is undisputed that Sosa failed to file a Proof of Loss
within the 60-day period, as required by the Policy. He
admitted the same when responding to interrogatories.
# 33-5 at 2).

(Doc.

This failure bars any recovery for the claimed

loss. In addition, there is no evidence that Wright waived the
requirement that such Proof of Loss be filed. As requested in
the Motion for Summary Judgment, the Court dismisses Sosa’s
claim as a matter of law. (Doc. # 33 at 12).
The Court notes that Wright “alternatively” seeks a
ruling that Sosa’s claim is precluded, at least in part,
because the damage occurred to a “basement” as that term is
defined

in

the

Policy.1

However,

in

the

Motion,

Wright

indicates that it only seeks a ruling regarding whether the
loss occurred to the basement “if the Court does not dismiss
the Plaintiff’s claim for failure to file a Proof of Loss.”
(Doc. # 33 at 13). Because the Court has determined that Sosa
is precluded from any recovery based on his failure to file a
Proof of Loss, the Court does not reach the issue of whether

1

The Policy defines a “basement” as “Any area of the
building, including any sunken room or sunken portion of a
room, having its floor below ground level (subgrade) on all
sides.” (Doc. # 33 at 5)(emphasis in original).
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the damaged property was a “basement,” as defined by the
Policy.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1) Defendant

Wright

National

Flood

Insurance

Company’s

Motion for Summary Judgment (Doc. # 33) is GRANTED.
Plaintiff Jorge Sosa’s claim for insurance benefits is
dismissed with prejudice based on his failure to timely
file a sworn Proof of Loss.
(2) The Clerk is directed to enter Judgment in Defendant
Wright National Flood Insurance Company’s favor and
thereafter shall CLOSE THE CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this 17th
day of April, 2017.

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