Joseph v. Gulfstream Property and Casualty Insrance Company et al

Filing 41

ORDER & REASONS: granting 35 Motion for Summary Judgment; FURTHER ORDERED that Plaintiff's claims against Defendant, Louisiana Farm Bureau Casualty Insurance Company, for supplemental amounts under Plaintiff's SFIP are hereby DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier on 7/14/14. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOSEPH

CIVIL ACTION

VERSUS

NO: 13-5298

GULFSTREAM PROPERTY AND
CASUALTY INSURANCE COMPANY,
ET AL

SECTION: J

ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc.
35) filed by Defendant, Louisiana Farm Bureau Casualty Insurance
Company ("Farm Bureau"), which is the only defendant remaining in
the above-captioned matter. Plaintiff has filed an Opposition (Rec.
Doc. 36), and Farm Bureau has filed a Reply (Rec. Doc. 40). Having
considered the motion, the parties’ submissions, the record, and
the applicable law, the Court finds, for the reasons expressed
below, that the motion should be GRANTED.
PROCEDURAL AND FACTUAL BACKGROUND
Defendant, Farm Bureau, issued a Standard Flood Insurance
Policy ("SFIP") to Plaintiff, Yolanda Joseph, for Plaintiff's
property located at 328 Devon Road, La Place, Louisiana, with
policy effective dates of November 2, 2011 to November 2, 2012. On
or about August 29, 2012, Hurricane Isaac caused flood damage to
Plaintiff's property that was covered by the SFIP. Within a few
days of the hurricane, Plaintiff submitted a claim to Defendant,
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Farm Bureau, for the flood damages, and on September 17, 2012, Farm
Bureau issued an advance building payment to Plaintiff in the
amount of $5,000. On September 24, 2012, Plaintiff signed a sworn
proof

of

loss

in

the

amount

of

$50,484.43

and

a

building

replacement cost proof of loss in the amount of $5,112.40, for a
total proof of loss amount of $55,596.83. On September 28, 2012,
Farm

Bureau

issued

a

check

to

Plaintiff

in

the

amount

of

$50,596.83, thus resulting in a total payment from Farm Bureau to
Plaintiff of $55,596.83. Plaintiff later submitted an additional,
itemized estimate prepared by her public adjuster.
Plaintiff

filed suit against Farm Bureau on August 7, 2013,

seeking to recover additional funds under her policy, but Farm
Bureau alleges that it has not received any additional signed and
sworn proofs of loss from Plaintiff. Plaintiff alleges that her
adjuster's

estimate

should

satisfy

the

requirements

of

a

supplemental proof of loss.
PARTIES' ARGUMENTS
Plaintiff argues that because she submitted her initial proof
of loss forms, and later submitted the estimate of her adjuster as
a supplemental proof of loss, Plaintiff is entitled to additional
amounts under her policy because Farm Bureau had ample information
available for it to meaningfully evaluate her supplemental claim.
Plaintiff contends that summary judgment should not be granted
based solely on Farm Bureau's technical defense that Plaintiff did

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not submit an additional proof of loss for supplemental payment.
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." Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56(c));
Little v. Liquid Air Corp., 37 F.2d 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). The Court will examine the evidence in
the light most favorable to the nonmoving party. Naquin v. Fluor
Daniel Servs. Corp., 935 F. Supp. 847, 848 (E.D. La. 1996) (citing
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). While
all reasonable inferences are drawn in favor of the nonmoving
party, a party cannot defeat summary judgment with conclusory
allegations or unsubstantiated assertions. Little, 37 F.2d at 1075.
A Court ultimately must be satisfied that "a reasonable jury could
not return a verdict for the nonmoving party." Delta, 530 F.3d at
399.
If the dispositive issue is one on which the moving party will
bear the burden of proof at trial, the moving party "must come
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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)
(citation omitted). 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. See id. at 324. The nonmovant may not rest
upon the pleadings but must identify specific facts that establish
a genuine issue for trial. See, e.g., id. at 325; Little, 37 F.3d
at 1075.
DISCUSSION
It is well established that Plaintiff's failure to submit an
additional, formal proof of loss that complies with all statutory
requirements is fatal to her claim for additional recovery under
her SFIP. See, e.g., Collins v. Nat'l Flood Ins. Program, 394 Fed.
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App'x 177, 180 (5th Cir. 2010); Kidd v. State Farm Fire & Cas. Co.,
392 Fed. App'x 241, 244-245 (5th Cir. 2010); Norman v. Fidelity
Nat'l Ins. Co., 354 Fed. App'x 934, 937 (5th Cir. 2009); Wientjes
v. Am. Bankers Ins. Co. of Florida, 339 Fed. App'x 483, 485-486
(5th Cir. 2009); Marseilles Homeowners Condominium Assoc., Inc. v.
Fidelity Nat'l Ins. Co., 542 F.3d 1053, 1056 (5th Cir. 2008).
Although Plaintiff provided written notice of her loss when she
submitted her adjuster's estimate, that submission falls short of
the

formal

requirements

for

a

proof

of

loss

statement,

and

Plaintiff's substantial compliance with statutory requirements is
insufficient. See Collins, 394 Fed. App'x at 180; Marseilles, 542
F.3d at 1056. Therefore, Plaintiff's claim for additional recovery
must be dismissed with prejudice for her failure to submit an
additional, formal proof of loss.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the Motion for Summary Judgment
(Rec. Doc. 35) is GRANTED.
IT

IS

FURTHER

ORDERED

that

Plaintiff's

claims

against

Defendant, Louisiana Farm Bureau Casualty Insurance Company, for
supplemental amounts under Plaintiff's SFIP are hereby DISMISSED
WITH PREJUDICE.

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New Orleans, Louisiana this 14th day of July, 2014.

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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