Hunter v. State Farm Fire and Casualty Company

Filing 30

ORDER granting 25 Motion for Summary Judgment. Signed by Chief Judge Sarah S. Vance on 8/3/12. (jjs, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

LIONEL NORTON HUNTER

CIVIL ACTION

VERSUS

NO: 09-2102

STATE FARM FIRE AND CASUALTY COMPANY

SECTION: R(2)

ORDER AND REASONS
Before the Court is defendant State Farm Fire and Casualty
Company’s Motion for Summary Judgment.1

Because plaintiff Lionel

Norton Hunter has not presented evidence that he submitted a
proof of loss, the Court GRANTS the motion.

I. Background
Plaintiff Lionel Hunter owns property at 2325-2327 Laurel
Street in New Orleans, Louisiana, which was insured by a flood
policy issued by State Farm.

State Farm issued this policy as a

participant in the National Flood Insurance Program, under which
flood policies are issued and adjusted by private insurers,
although the payments ultimately come from the United States
treasury.

See generally 44 C.F.R. § 62.23; see also Dwyer v.

Fidelity Nat. Prop. & Cas. Co., 565 F.3d 284, 285 (5th Cir.
2009).

1

Furthermore, the policies are drafted by the Federal

R. Doc. 25.
1

Emergency Management Agency and cannot be altered by the
insurance company without governmental approval.

44 C.F.R.

§§ 61.4(b), 61.13(d); see also Dwyer, 565 F.3d at 285.
Hunter alleges that his property suffered significant flood
damage during Hurricane Katrina, and that a State Farm adjustor
significantly undervalued these damages.2

Hunter brought suit

against State Farm for failure to pay the full amount of his
damages.

State Farm now moves for summary judgment, asserting

that Hunter did not comply with the mandatory requirements of the
flood policy.

II. Legal Standard
Summary judgment is appropriate when “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(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994).

When assessing whether a dispute as to any

material fact exists, the Court considers “all of the evidence in
the record but refrains from making credibility determinations or
weighing the evidence.”

Delta & Pine Land Co. v. Nationwide

Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008).

2

R. Doc. 1 at ¶8.
2

All

reasonable inferences are drawn in favor of the nonmoving party,
but “unsupported allegations or affidavits setting forth
‘ultimate or conclusory facts and conclusions of law’ are
insufficient to either support or defeat a motion for summary
judgment.”

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216

(5th Cir. 1985) (quoting C. Wright, A. Miller & M. Kane, Federal
Practice and Procedure: Civil 2d § 2738 (1983)).
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’”

Int’l

Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th
Cir. 1991).

The nonmoving party can then defeat the motion by

either countering with sufficient evidence of its own, or
“showing that the moving party’s evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party.”

Id. at 1265.

If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
of the nonmoving party’s claim.

See Celotex, 477 U.S. at 325.

The burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts
showing that a genuine issue exists.
3

See id. at 324.

The

nonmovant may not rest upon the pleadings, but must identify
specific facts that establish a genuine issue for trial.

Id. at

325; see also Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the
entry of summary judgment, after adequate time for discover and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden
of proof at trial.’”) (citing Celotex, 477 U.S. at 332).

III. Analysis
The Standard Flood Insurance Policy (“SFIP”), which is the
policy drafted by FEMA and issued by private insurers, contains
the following provisions:
J. Requirements in Case of Loss
In case of a flood loss to insured property, you
must:
1. Give prompt written notice to us;
2. As soon as reasonably possible separate the
damaged and undamaged property, putting it in the
best possible order so that we may examine it;
3. Prepare an inventory of damaged property
showing the quantity, description, actual cash
value, and amount of loss. Attach all bills,
receipts, and related documents;
4. Within 60 days after the loss, send us a proof
of loss, which is your statement of the amount 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;
4

. . .
f. Specifications of damaged buildings and
detailed repair estimates;
. . .
i. The inventory of damaged personal property
described in J.3 above.
R. Suit Against Us
You may not sue us to recover money under this
policy unless you have complied with all the
requirements 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, and you
must file the suit in the United States District Court
of the district in which the covered property was
located at the time of loss. This requirement applies
to any claim that you may have under this policy and to
any dispute that you may have arising out of the
handling of any claim under the policy.
44 C.F.R. Pt. 61, App. A(1).
SFIP provisions strictly.

Courts interpret and enforce the

Gowland v. Aetna, 143 F.3d 951, 954

(5th Cir. 1998); Foman v. Fed’l Emergency Mgmt. Agency, 138 F.3d
543, 545 (5th Cir. 1998).

Therefore, “an insured’s failure to

provide a complete, sworn proof of loss statement, as required by
the flood insurance policy, relieves the federal insurer’s
obligation to pay what otherwise might be a valid claim.”
Gowland, 143 F.3d at 954; see also Marseilles Homeowners Condo.
Ass’n, Inc. v. Fidelity Nat’l Ins. Co., 542 F.3d 1053, 1055 (5th
Cir. 2008) (per curiam).
On August 31, 2005, after Hurricane Katrina, the Acting
Federal Administrator extended to one year the deadline from
5

section J(4) of the SFIP requiring an insured to submit a sworn
proof of loss within sixty days of the loss.3

During this

period, FEMA waived the usual proof-of-loss requirement if the
policy holder agreed to the report of the insurer’s adjuster.
This extension, however, did not affect the requirement that the
insured submit a sworn proof-of-loss if he “‘disagree[d] with the
insurer’s adjustment, settlement, or payment of the claim.’”
Marseilles, 542 F.3d at 1057 (quoting FEMA Memo).

Thus, when the

insured disputes the report of the insurer’s adjuster, the
insured must submit a sworn proof of loss within one year of the
date of the loss, or the insured is foreclosed from suing under
the policy.

Marseilles, 542 F.3d at 1056-58; see also Richardson

v. Am. Bankers Ins. Co. of Fla., 279 Fed. App’x 295, 298-99 (5th
Cir. 2008) (per curiam).
Here, Hunter’s claim appears to have fallen within the postKatrina period in which the Federal Insurance Administrator
extended the 60-day deadline in section J(4) and Hunter disputes
the amount State Farm paid for flood damage to his property.4
Thus, Hunter must have submitted a sworn proof of loss statement
in order to file a lawsuit under his SFIP.

State Farm contends

that Hunter has failed to meet the proof-of-loss requirements of

3

See R. Doc. 25-3 (copy of August 31, 2005 memo of
Acting Federal Insurance Administrator David Maurstad).
4

R. Doc. 25-4 (affidavit of Grover Gail Brashier).
6

the SFIP.

Specifically, it provides an affidavit from a State

Farm Claims Team Manager and custodian of Hunter’s claims file.
This affidavit states that Hunter has not provided State Farm
with a proof of loss, nor has he submitted any documentation to
indicate that the government waived their obligation to submit a
proof of loss.5
Hunter filed a response to this motion, but he pointed to no
evidence that might raise a genuine issue of material fact about
the accuracy of these statements.6

Instead, Hunter argues that

State Farm could grant a waiver of the proof of loss requirement,
thus creating a genuine issue of material fact.7

This argument

lacks merit for two reasons.

First, Hunter does not allege that

State Farm granted a waiver.

Second, State Farm cannot waive any

requirements of the SFIP without express written consent of the
Federal Insurance Administrator, which did not occur.
§ 61, app. A(2), art. VII(D).

44 C.F.R.

The Ninth Circuit case Hunter

cites in support of his argument is not precedential and in
contradiction to Fifth Circuit case law.

In particular, in

Marseilles Homeowners Condo. Ass’n, Inc., the Fifth Circuit held
that it is the insured’s duty to timely submit a signed and sworn
proof of loss, and that FEMA cannot be estopped from insisting on

5

See R. Doc. 25-4 (affidavit of Grover Gail Brashier).

6

R. Doc. 26.

7

Id. at 4.
7

a proof of loss because of action by its private insurer.
Marseilles, 542 F.3d 1053.

See

Finally, the Fifth Circuit has

rejected Hunter’s argument that he has suffered constitutional
injuries absent a finding of waiver or satisfaction of the proof
of loss requirement.

See Wienjtes, 2009 WL 2391407 at *3; see

also Dupuy v. Fid. Nat’l Prop. & Cas. Ins. Co., No. 07-4661, 2009
WL 82555, at *3 n.5 (E.D. La. Jan. 12, 2009; Howell v. State Farm
Ins. Cos., 540 F. Supp. 2d 6621, 633 (D. Md. 2009); Schumitzki v.
Dir., FEMA, 656 F. Supp. 430, 433 (D.N.J. 1987).

Accordingly,

the uncontested facts indicate that Hunter did not submit a sworn
proof of loss in accordance with the SFIP, and State Farm is
entitled to summary judgment.

See Kidd v. State Farm Fire & Cas.

Co., 392 Fed. Appx. 241, 243-45 (5th Cir. 2010).

IV. Conclusion
For the foregoing reason, State Farm’s motion for summary
judgment is GRANTED.

3rd

New Orleans, Louisiana, this

day of August, 2012.

SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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