Barnes v. Allstate Insurance Company

Filing 27

ORDER AND REASONS - IT IS ORDERED that Defendants' motion for summary judgment is GRANTED and Plaintiff's claims are DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
EDNA BARNES,

CIVIL ACTION

Plaintiff
VERSUS

NO. 13-5490

ALLSTATE INSURANCE
COMPANY, et al.

SECTION "E"

Defendants
ORDER & REASONS
The Court has before it a motion for summary judgment filed by Defendants William
Craig Fugate and FEMA, which Plaintiff Edna Barnes opposes.1 The Court has reviewed the
briefs and the law and now issues this Order and Reasons granting the motion for summary
judgment.
BACKGROUND
This case arises out of a Standard Flood Insurance Policy ("SFIP") issued by FEMA
insuring Plaintiff's home in LaPlace, Louisiana.2 After her home was damaged in Hurricane
Isaac, Plaintiff timely notified FEMA of the loss and FEMA sent an independent adjuster
to inspect the property. The adjuster recommended a total payment of $56,062.34, divided
between the various coverages available under the policy. Plaintiff timely submitted a
signed and sworn proof of loss for the full $56,062.34 recommended by the adjuster. It is
undisputed that FEMA paid the $56,062.34 covered by the first proof of loss.

1
2

R. Docs. 19, 22, 25.

Plaintiff did not submit a response to the statement of undisputed material
facts and concedes that facts "regarding the claims process, coverage available, and
dates of proof of loss submissions remains largely undisputed," leaving only a question
of law. See R. Doc. 22 at 1.

Plaintiff then submitted receipts in support of additional payments for replacing a
refrigerator and removing damaged contents. The adjuster recommended paying an
additional $1,992.11 on that claim. Plaintiff submitted a second signed, sworn proof of loss
in the amount of $1,992.11, which FEMA again paid in full. According to the undisputed
record, Plaintiff did not submit a third proof of loss after that final payment.
Plaintiff then filed this lawsuit pursuing additional payments under her flood
insurance policy. After several amendments, Plaintiff named FEMA and its Administrator
as Defendants. Defendants now move for summary judgment, contending that Plaintiff did
not comply with the terms of her SFIP by submitting a sworn proof of loss for any
additional disputed amounts, thus barring this lawsuit.
STANDARD
A motion challenging an insured's compliance with the SFIP proof-of-loss
requirement is "inseparable from the merits" and therefore treated as a motion for
summary judgment where, as here, it depends on matters outside the pleadings. See
Reeves v. Guiffrida, 756 F.2d 1141, 1143 (5th Cir. 1985). Summary judgment is appropriate
only “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56; see also Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986). Because the facts are undisputed and this motion
presents only a question of law, resolution on summary judgment is appropriate. See
Sheline v. Dun & Bradstreet Corp., 948 f.2d 174, 176 (5th Cir. 1991).
ANALYSIS
Flood insurance issued pursuant to the National Flood Insurance Program, such as
Plaintiff's policy in this case, are in the form of the SFIP. See Gowland v. Aetna, 143 F.3d
2

951, 953 (5th Cir. 1998). "[N]o provision of the [SFIP] can be altered, varied, or waived
without the express written consent of the Federal Insurance Administrator." Id. The
policy requires insureds to submit proofs of loss containing, inter alia, a sworn "statement
of the amount you are claiming under the policy":
In case of a flood loss to insured property, you must:
...
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 [specified information
regarding the claim].
5. In completing the proof of loss, you must use your own judgment
concerning the amount of the loss and justify that amount.
44 C.F.R. pt. 61, App. A(1), art. VII(J) (emphasis added). The SFIP explicitly warns
policyholders that "[y]ou may not sue us to recover money under this policy unless you have
complied with all the requirements of the policy." Id. at art. VII(R).
"[S]trict adherence is required to all terms of the SFIP." Forman v. FEMA, 138 F.3d
543, 545 (5th Cir. 1998). In particular, "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. Thus, it is well
settled that "an insured must file a sworn proof of loss before seeking damages in excess of
the amount paid by the insurer." Kidd v. State Farm Fire & Cas. Co., 392 F. App'x 241, 244
(5th Cir. 2010).
Defendants' argument for summary judgment is straightforward. It is undisputed
that Plaintiff submitted two sworn proofs of loss for specific amounts and was paid in full
for the amounts she claimed in those proofs of loss. Without having filed an additional
proof of loss claiming any additional amounts, Defendants argue, Plaintiff has not complied
with the requirements of the SFIP and she cannot bring this lawsuit for additional payment

3

under her policy.
Defendants are correct. "[A]n insured must file a sworn proof of loss before seeking
damages in excess of the amount paid by the insurer." Kidd, 392 F. App'x at 244
(emphasis added). FEMA paid every amount Plaintiff claimed in a sworn proof of loss and
Plaintiff did not submit a third sworn proof of loss for any additional amounts, so she is
barred from bringing this lawsuit. The SFIP simply does not permit Plaintiff to sue for
additional amounts not included in a required sworn proof of loss.
Plaintiff's arguments in opposition to summary judgment are unconvincing.
Essentially, she contends that the two proofs of loss she did file preserved the "claims" for
damage to her house and contents and satisfied the SFIP preconditions to suit, and she was
not required to submit a third proof of loss merely to dispute the amounts she was paid on
those "claims."3 It is true that an insured may sue for amounts claimed in a proof of loss
but rejected by the insurer, but that is not the situation in this case.
Plaintiff misreads the Fifth Circuit opinions in Richardson v. American Bankers
Insurance Co. of Florida and Marseilles Homeowners Condominium Association, Inc. v.
Fidelity National Insurance Company. In Richardson, the plaintiff received a payment in
the amount recommended by his flood policy adjuster pursuant to a limited waiver of the
proof-of-loss requirement after Hurricane Katrina. See 279 F. App'x 295, 298 (5th Cir.
2008). But his suit for additional payments was barred because he never "submitt[ed] a
sworn proof of loss for the additional sums" he claimed he was owed. See id. (emphasis
added). Likewise in Marseilles, it was the plaintiff's failure to submit a sworn proof of loss
for amounts above what the insurer had already paid that barred the lawsuit. See 542 F.3d

3

R. Doc. 22 at 4-5.
4

1053, 1056 (5th Cir. 2008). Thus, in Richardson and Marseilles it was not the categorical
failure to submit any proof of loss that precluded suing, but the failure to submit a proof of
loss for the amounts claimed in the lawsuit. Neither case held or implied, as Plaintiff
argues, that a proof of loss which is paid in full can "preserve" her right to sue for more than
the amount claimed and paid. See also Kidd, 392 F. App'x at 244.
Plaintiff also relies on the reasoning in Stogner v. Allstate Insurance Co., but that
case is factually inapposite. In Stogner, the plaintiff suffered flood losses in 2005 and
2008. 2010 WL 148291, at *1 (E.D. La. Jan. 11, 2010). When the plaintiff submitted a proof
of loss for the 2008 incident, the insurer disputed the documentation regarding whether
the 2005 damage had been repaired and therefore paid only $6,171, and the plaintiff later
filed suit. See id. The Stogner court recognized that "it is clear that supplementary proofs
of loss are required when a claimant requests more in the supplementary claim than in the
original claim." See id. at *4; see also id. at *3 (emphasis added) (citing Sutor v. FEMA,
2009 WL 4268457, at * 5 (E.D. Pa. Nov. 23, 2009) ("[P]olicyholders may not bring suit to
recover an amount not claimed in a proof of loss.")). But the Stogner court denied
summary judgment because it was not apparent from the record whether the lawsuit was
for "the same amount" claimed in the 2008 proof of loss (but not paid in full), or if it was
for more, which would require another proof of loss. See id.4 Stogner does not help

4

If a proof of loss is paid in part and rejected in part, as may have been the case in
Stogner, an insured may "exercise rights" under the policy, which includes the right to
sue (assuming compliance with all other requirements):
If we reject your proof of loss in whole or in part you may:
a. Accept our denial of your claim;
b. Exercise your rights under this policy; or
c. File an amended proof of loss as long as it is filed within 60 days of the
date of the loss.
44 C.F.R. pt. 61, App. A(1), art. VII(M)(2). The converse of that proposition would seem
to be that a plaintiff who does not have a proof of loss rejected in whole or in part—for
5

Plaintiff because in this case there is no factual question as to whether Plaintiff's proofs of
loss were paid in full, and thus any claim asserted in this lawsuit necessarily is for amounts
exceeding that claimed in the proofs of loss.
To sum up, Plaintiff filed two proofs of loss claiming specific amounts owed under
her flood insurance policy. FEMA paid those amounts in full. Plaintiff did not submit a
third proof of loss claiming any additional amounts owed. She was required to do so by the
terms of the SFIP as a condition precedent to bringing this suit. Accordingly, Defendants
are entitled to summary judgment. This is consistent with the majority of decisions from
other sections of this Court. See Bechtel v. Lighthouse Prop. Ins. Co., No. 13-5289, 2014
WL 1389631 (E.D. La. Apr. 1, 2014); Morin v. Am. Bankers Ins. Co. of Fla., No. 13-5972,
2014 WL 949424 (E.D. La. Mar. 10, 2014); Clark v. FEMA, No. 13-5232, 2014 WL 527655
(E.D. La. Feb. 7 2014); Fowl v. Fid. Nat'l Prop. & Cas. Ins. Co., No. 12-283, 2013 WL
392599 (E.D. La. Jan. 31, 2013).
IT IS ORDERED that Defendants' motion for summary judgment is GRANTED
and Plaintiff's claims are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 14th day of April, 2014.

____________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

example, if the amount claimed is paid in full—may not exercise rights under the policy
and thus may not sue. Defendants did not assert this policy language as an additional
basis for summary judgment, and so the Court does not rely on it.
6