Sharpe v. American National Property and Casualty Company
ORDER AND REASONS granting 16 Motion to Dismiss plaintiff's extra-contractual and tort claims. Signed by Chief Judge Sarah S. Vance on 11/20/2013. (mmm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL VERNON SHARPE
AMERICAN NATIONAL PROPERTY
AND CASUALTY COMPANY
ORDER AND REASONS
Defendant American National Property and Casualty Company
moves the Court for judgment on the pleadings under Federal Rule
of Civil Procedure 12(c) on plaintiff's extra-contractual and
tort claims. For the following reasons, the Court GRANTS
Plaintiff Michael Sharpe is a LaPlace, Louisiana homeowner.
He purchased a Standard Flood Insurance Policy (SFIP) from
defendant ANPAC.1 The insurance under a SFIP is provided through
the National Flood Insurance Program (NFIP), which is
administered by the Federal Emergency Management Agency under the
National Flood Insurance Act (NFIA). Wright v. Allstate Ins. Co.,
415 F.3d 384, 386 (5th Cir. 2005) ["Wright I"]. "The terms of
SFIP policies are dictated by FEMA." Id. Although ANPAC is
nominally plaintiff's insurer, "[p]ayments on SFIP claims
ultimately come from the federal treasury." Id. In administering
R. Doc. 1 at 1.
the policy, ANPAC acts as a "fiscal agent of the United States,"
and is known as a Write Your Own insurer. Id.
In August 2012, plaintiff's property sustained flood and
wind damages as a result of Hurricane Isaac.2 Plaintiff
thereafter filed a flood claim with ANPAC for flood damages to
In January 2013, plaintiff sued ANPAC, asserting that the
amount he has received thus far from ANPAC has not fully
compensated him for his covered losses.4 His complaint includes
claims for breach of contract, "failure to tender payment for
casualty losses," and other, unspecified causes of action "that
will be determined at trial."5 Plaintiff seeks compensatory
damages, as well as "special damages, penalties, court costs,
attorneys' fees, together with legal interest."6
ANPAC now moves to dismiss plaintiff’s extra-contractual and
tort claims.7 Plaintiff has not filed a response.
Id. at 2. Plaintiff's complaint states that the damage
was sustained in August 2011, but the Court assumes that this was
a typographical error, as Hurricane Isaac occurred in 2012.
Id. at 2-3.
Id. at 3.
Id. at 4.
R. Doc. 16.
"A motion for judgment on the pleadings under Rule 12(c) is
subject to the same standard as a motion to dismiss under Rule
12(b)(6)." Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir.
2008). In deciding a motion under Rule 12(c), a court must
determine whether the complaint, viewed in the light most
favorable to the plaintiff, states a valid claim for relief. Id.;
see generally 5C Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 1368 (3d ed. 2013). In deciding this
motion, the Court must look only to the pleadings, Brittan
Commc'ns Int'l Corp. v. Sw. Bell Tel. Co., 313 F.3d 899, 904 (5th
Cir. 2002), and exhibits attached to the pleadings, see
Voest–Alpine Trading USA Corp. v. Bank of China, 142 F.3d 887,
891 n.4 (5th Cir. 1998).
ANPAC is correct that, to the extent that plaintiff alleges
extra-contractual and state law tort claims, these claims must be
The regulations promulgated by FEMA under the National Flood
Insurance Act of 1968 provide that "all disputes arising from the
handling of any claim under [a SFIP] are governed exclusively by
the flood insurance regulations issued by FEMA, the National
Flood Insurance Act of 1968 . . . and Federal common law." 44
C.F.R. pt. 61, App. A(1), Art. IX. These regulations expressly
preempt state law tort claims arising from claims handling by a
WYO. C.W. Gallup v. Omaha Prop. & Cas. Ins. Co., 434 F.3d 341,
344-45 (5th Cir. 2005); see also Wright I, 415 F.3d at 390.
Furthermore, the Fifth Circuit has held that the NFIA does not
explicitly or implicitly authorize extra-contractual claims
against WYO insurers based on federal common law. See Wright v.
Allstate Ins. Co., 500 F.3d 390, 398 (5th Cir. 2007) ["Wright
II"]. In other words, insureds under SFIP policies have one
remedy, and only one remedy for nonpayment of claims: a suit for
breach of contract. See 42 U.S.C. § 4072 (authorizing such
suits). Here, plaintiff’s claims stem solely from his claims
under the standard policy issued by ANPAC, which is a WYO insurer
under the NFIP. Gallup, Wright I, and Wright II thus expressly
prohibit any state law or extra-contractual claims in this
Plaintiff is also precluded from recovering attorneys fees
under state law. See West v. Harris, 573 F.2d 873, 881 (5th Cir.
1978) ("[A] prevailing plaintiff in a suit on a flood insurance
policy issued pursuant to the N[FIA] is not entitled to recover .
. . attorneys' fees allowed by state insurance law for arbitrary
denial of coverage."); Midland Mortg. Co. v. State Farm Fire &
Cas. Co., No. 07-4910, 2009 WL 1789419, at *4 (E.D. La. June 23,
2009) (following West); Miller v. Omaha Prop. & Cas. Ins. Co.,
No. Civ.A. H-95-4942, 1997 WL 33833419, at *3 (S.D. Tex. Sep. 4,
Neither can plaintiff recover legal interest. In Newton v.
Capital Assurance Co., 245 F.3d 1306 (11th Cir. 2001), the
Eleventh Circuit held that prejudgment interest awards against
WYO companies constitute direct charges on the public treasury
and thus are precluded by the "no-interest rule," which provides
immunity to the United States from interest awards. Id. at 1312;
cf. In re Estate of Lee, 812 F.2d 253, 256 (5th Cir. 1987) (award
of prejudgment interest in suits against FEMA is precluded by
sovereign immunity). The Fifth Circuit has cited Newton with
approval for this proposition, see Monistere v. State Farm Fire &
Cas. Co., 559 F.3d 390, 398 (5th Cir. 2009), and other courts in
this district have followed Newton, see Miceli v. Hartford Fire
Ins. Co., No. Civ.A. 03-2724, 2004 WL 253457, at *2-4 (E.D. La.
Feb. 10, 2004). Accordingly, the Court holds that plaintiff's
request for legal interest is prohibited by the no-interest rule.
plaintiff’s extra-contractual and tort claims is GRANTED.
New Orleans, Louisiana, this _____ day of November, 2013.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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