Vicari, et al v. Federal Emergency Management Agency, et al
Filing
25
ORDER AND REASONS granting 12 Motion for Summary Judgment. Signed by Judge Helen G. Berrigan on 09/11/2013. (kac, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PETER G. VICARI, ET AL
CIVIL ACTION
VERSUS
NO. 12-2192
FEDERAL EMERGENCY MANAGEMENT
AGENCY, ET AL
SECTION “C” (2)
ORDER AND REASONS1
Before the Court is a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and/or 12(b)(1),
and a Motion for Summary Judgment by Defendants, Federal Emergency Management Agency
(“FEMA”) and William Craig Fugate. Plaintiffs, Peter G. Vicari and Barbara Vicari, oppose this
motion. The motion is before the Court on the briefs without oral argument. After reviewing the
memoranda of the parties, the record in the case and the applicable law, the Court GRANTS
summary judgment as set forth below.
I. Background
Plaintiffs hold a Standard Flood Insurance Policy (“SFIP”) pursuant to the U.S.
Government’s National Flood Insurance Program (“NFIP”), which is administered by FEMA. The
SFIP was in effect on August 28, 2011 when a tropical storm caused severe flooding and damage
throughout the area of Southwest Louisiana. Plaintiffs sued FEMA for allegedly failing to fully and
fairly compensate Plaintiffs for all flood damages as provided for under the NFIP. Plaintiffs also
alleged that FEMA acted in bad faith and breached the insurance policy by refusing to pay, and
Plaintiffs seek bad faith damages pursuant to Louisiana Revised Statutes 22:658 and 22:1220 against
1
Jennifer Watkins, a third-year student at Tulane University Law School, assisted in the preparation of this Order
and Reasons.
Defendants. It is undisputed that Plaintiffs filed a Proof of Loss on November 4, 2011 and
December 12, 2011, both more than 60 days after the loss.
II. Law and Analysis
a. Standard of Review
Summary judgment is only proper when the record indicates that there is not a genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R.
Civ. P. 56. A genuine issue of fact exists only if the evidence is such that a reasonable jury could
return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247-48
(1986); see also, Taita Chem. Co. v. Westlake Styrene Corp., 246 F.3d 377, 385 (5th Cir. 2001).
When considering a motion for summary judgment, this Court “will review the facts drawing all
inferences most favorable to the party opposing the motion.” Reid v. State Farm Mut. Auto Ins. Co.,
784 F.2d 577, 578 (5th Cir. 1986).
b. Plaintiff’s Claims
Defendants move for summary judgment primarily on the grounds that proper compliance
with submitting the Proof of Loss is a prerequisite before a SFIP claim can be considered. One
requirement is that the Proof of Loss must ordinarily be submitted within 60 days of the loss, unless
there is an express and written waiver.2 44 C.F.R. § 61, App. A(1) Art. VII(D) and VII(J)(4).
“Payments on SFIP claims come ultimately from the federal treasury.” Wright v. Allstate Ins. Co.
(Wright I), 415 F.3d 384, 386 (5th Cir. 2005); see Gowland v. Aetna, 143 F.3d 951, 953 (5th Cir.
1998). Because the federal treasury is implicated in the payment of flood claims, the provisions of
a SFIP must be strictly construed and enforced. Wright I, 415 F.3d at 387; Gowland, 143 F.3d at
954; Hamide v. Omaha Prop. & Cas. Ins. Co., No. Civ.A. 03-1405, 2004 WL 74316, at *2 (E.D.La.
2
Plaintiffs do not argue the existence of any such express or written waiver.
Jan. 14, 2004)(Fallon, J.)(“Failure to [strictly] construe runs afoul of the Appropriations Clause of
the United States Constitution.”). “Under the Appropriations Clause of the Constitution, ‘[m]oney
may be paid out only through an appropriation made by law; in other words, the payment of money
from the Treasury must be authorized by a statute.’” Wright I, 415 F.3d at 387 (quoting Office of
Pers. Mgmt. v. Richmond, 496 U.S. 414, 424, 110 S.Ct. 2465, 2471, 110 L.Ed.2d 387, 399 (1990)).
Therefore, “[w]here federal funds are implicated, the person seeking those funds is obligated to
familiarize himself with the legal requirements for receipt of such funds.” Id. at 388 (citing Heckler
v. Cmty. Health Servs. of Crawford County, Inc., 467 U.S. 51, 63, 104 S.Ct. 2218, 2226, 81 L.Ed.2d
42, 54 (1984)).
Under an SFIP, compliance with the policy is required before a suit can be initiated. 44
C.F.R. §61 App. A(1), Art. VII(R). This includes the proof of loss requirement. See Marseilles
Homeowners Condominium Ass’n Inc. v. Fidelity Nat. Ins. Co., 542 F.3d 1053, 1055 (5th Cir. 2008).
This is a strict requirement. Id. at 1056. As Plaintiffs did not file a timely proof of loss, there is no
recovery owed.
Plaintiffs assert they were led to believe by their adjuster that they first had to prove that
home repairs from prior storms had been made prior to August 28, 2011. Furthermore, Plaintiffs
assert that when they received the first Proof of Loss from their adjuster, they believed the amounts
to be incorrect and attempted to contact the adjuster, but their phone call was not returned until the
end of October. However, the SFIP does not require the adjuster to furnish the policyholder with
the Proof of Loss form or help the policyholder complete it. 44 C.F.R. § 61, App. A(1) Art.
VII(J)(7). The SFIP also states that the amount of loss submitted on the Proof of Loss form is to be
made based on the policyholder’s judgment. 44 C.F.R. § 61, App. A(1) Art. VII(J)(5). Furthermore,
there is no evidence during this time that the Plaintiffs received an express or written waiver of the
Proof of Loss requirement or attempted to secure one when the 60-day deadline was approaching.
Finally, Plaintiffs’ SFIP was part of the Repetitive Loss program meaning that their dwelling had
incurred multiple losses and they had made multiple claims. This offers further evidence that the
plaintiffs should have been aware of the requirements to make a claim, as is required of all
policyholders.
Accordingly,
IT IS ORDERED that the motion for summary judgment filed by the defendants is
GRANTED. (Rec. Doc. 12).
New Orleans, Louisiana this 11th day of September, 2013.
_________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?