Phillips v. State Farm Fire and Casualty Company et al
Filing
31
ORDER & REASONS: Defendant's Motion to Dismiss or, alternatively Motion for Summary Judgment (Rec. Doc. 19 ) is GRANTED IN PART, DENIED IN PART and DENIED AS MOOT IN PART. IT IS ORDERED that Plaintiff's claims for declaratory judgment are hereby DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier on 1/27/14. (sek, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SANDRA PHILLIPS
CIVIL ACTION
VERSUS
NO: 13-5225
STATE FARM FIRE AND CASUALTY
COMPANY, ET AL
SECTION: “J” (1)
ORDER & REASONS
Before the Court is defendant Federal Emergency Management
Agency ("FEMA")'s Motion to Dismiss or, alternatively Motion for
Summary Judgment (Rec Doc. 19), and Plaintiff Sandra Phillips'
opposition thereto. (Rec. Doc. 28) The motion is set for hearing on
January 29, 2014, on the briefs. Having considered the motions and
memoranda of counsel, the record, and the applicable law, the Court
finds that FEMA's motion should be granted in part and denied in
part for the reasons set forth more fully below.
FACTS AND PROCEDURAL BACKGROUND
It
undisputed
that
Plaintiff
purchased
a
Dwelling
Form
Standard Flood Insurance Policy ("SFIP") for her home in Boutte,
Louisiana and that the SFIP was in effect in August 2012 when
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Hurricane Isaac made landfall in southeast Louisiana. Following the
storm, Plaintiff contends that "flood waters covered the yard and
leveled off at the base of the home" and remained there for 10 to
14 days following Hurricane Isaac. Plaintiff alleges that on the
fifth day, her home began to sink causing extensive structural
damage, carpet mold, buckled flooring, and a gas leak.
On September 5, 2012, Plaintiff's son contacted the National
Flood
Insurance
Program
("NFIP")
to
report
the
damage,
and
eventually an NFIP-assigned adjuster, Mr. John Paul Densford, Jr.,
inspected the property. Following his inspection, Mr. Densford
presented Plaintiff with an estimate that she felt was inadequate;
but, Plaintiff nonetheless executed and submitted a Proof of Loss
Form based on his estimate, and FEMA paid the entirety of the
claimed loss, less Plaintiff's deductible, on December 21, 2012.
Believing that the damage to her home was more extensive than
the original Proof of Loss estimated, Plaintiff retained a public
adjuster
to
inspect
her
home.
Following
the
re-inspection,
Plaintiff alleges that she forwarded another Proof of Loss Form to
FEMA and that the public adjuster forwarded his estimate to FEMA as
well. FEMA, however, contends that it only received an estimate
from the public adjuster, but never received a second Proof of
Loss; therefore, it never compensated Plaintiff for her alleged
losses
beyond
the
first
payment
made
on
December
21,
2012.
Accordingly, Plaintiff filed suit in this Court on August 2, 2013,
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alleging breach of contract and demanding damages and a declaratory
judgment that "FEMA is obligated to pay [Plaintiff's] claims loss
and damages, less any applicable deductible amount." (Rec. Doc. 1)
FEMA filed the instant motion on November 12, 2013.
PARTIES' ARGUMENTS
Defendant asserts that Plaintiff's suit should be dismissed
because: (1) Defendant has not waived its sovereign immunity to
permit lawsuits under 28 U.S.C. § 1331 or the Declaratory Judgment
Act, 28 U.S.C. §§ 2201-02; and (2) Plaintiff's claim for breach of
contract is barred because she failed to timely submit proof of
loss to FEMA for the damages that she seeks in the instant suit.
Additionally, FEMA asserts that Plaintiff's jury demand should be
dismissed because she does not have a right to a jury in this
matter and that Plaintiff named the wrong defendant in this action.
Plaintiff contends that she is entitled to a declaratory
judgment because this Court may issue such a judgment in any case
in which they have original jurisdiction. As to her breach of
contract claim, Plaintiff argues that that there is an issue of
material fact as to whether she submitted a second proof of loss,
and, even if she did not, the public adjuster's estimate were
merely a supplement to her original proof of loss, thus she did not
need to file a second proof of loss. Finally, Plaintiff asserts
that her amended complaint remedies any pleading defects that
exist.
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LEGAL STANDARD & DISCUSSION
A. Defects in the Complaint
In her amended complaint, Plaintiff removed her jury request
and named the proper defendant; therefore, inasmuch as FEMA raises
arguments concerning these defects, the motion is denied as moot.
B. Declaratory Judgment
Plaintiff
seeks
a
declaratory
judgment
that
"FEMA
is
obligated to pay [Plaintiff's] claims loss and damages, less any
applicable deductible amount;" however, Defendant argues that a
declaratory judgment is not an available remedy under the National
Flood Insurance Act ("NFIA"). (Rec. Doc. 1, p. 4) In Scritchfield
v. Mut. of Omaha Ins. Co., 341 F. Supp. 2d 675, 682 (E.D. Tex.
2004), the court, dealing with a nearly identical issue, stated
that:
Defendants acknowledge the policy and the breach of
contract claim under 42 U.S.C. § 4072, but obviously
dispute its merits. Even though there is a dispute about
the rights and obligations of the parties under the
contract, that does not automatically ripen into an
affirmative remedy under the Declaratory Judgment Act,
especially if other adequate remedies already exist. 10B
Charles A. Wright Arthur R. Miller & Mary Kay Kane, Fed.
Prac. & Proc. §§ 2751, 2758 (3d ed.1998). Plaintiffs
would get nothing from a declaratory judgement [sic] that
they would not get from prevailing on their breach of
contract claims. There is no claim that there is a need
to interpret the contract language because of possible
future events.
Scritchfield, 341 F. Supp. 2d 675, 682 (E.D. Tex. 2004).
In
the
instant
matter,
the
4
Court
finds
this
reasoning
persuasive; therefore, Defendant's motion is granted inasmuch as it
seeks to dismiss the portions of the claim in which Plaintiff seeks
a declaratory judgment. This, however, is not grounds to dismiss
the entire suit as this Court has exclusive jurisdiction to hear
Plaintiff's breach of contract claim pursuant to the NFIA. 42
U.S.C. § 4072; Smith v. Nat'l Flood Ins. Program, 796 F.2d 90, 92
(5th Cir. 1986).
C. Proof of Loss
Defendant's argument concerning Plaintiff's failure to timely
submit proof of loss must be treated as a motion for summary
judgment. Berger v. Nat'l Flood Ins. Program, No. 12-2158, 2013 WL
499310, *3 (E.D. La., Feb. 7, 2013). Under the summary judgment
standard, Defendant's motion must be denied because there are
issues of material fact present which preclude summary judgment.
Specifically, there is an issue of material fact as to whether
Plaintiff submitted a second proof of loss to FEMA.1 (Rec. Doc. 28,
p. 8; Rec. Doc. 28-5) Therefore, the motion for summary judgment
must be denied.
Accordingly,
Defendant's Motion to Dismiss or, alternatively Motion for
Summary Judgment (Rec. Doc. 19) is GRANTED IN PART, DENIED IN PART
1
Even if it is later determined that Plaintiff did not submit a second
proof of loss form, summary judgment would still be inappropriate at this time
under the reasoning recently set forth in this Court's Order and Reasons dated
January 24, 2014 in Edward Phillips v. Federal Emergency Management Agency,
Case No. 13-cv-5291. (Rec. Doc. 28)
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and DENIED AS MOOT IN PART.
IT IS ORDERED that Plaintiff's claims for declaratory judgment
are hereby DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 27th day of January, 2014.
_____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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