Pardee v. State Farm Insurance Company et al

Filing 17

ORDER granting as unopposed 16 Motion for Partial Dismissal. The plaintiff's extra-contractual claims are dismissed; plaintiff is precluded from attempting to recover any damages other than those permissible for her breach of contract claim; and, plaintiff's demand for a jury trial is stricken. Signed by Judge Martin L.C. Feldman on 3/7/2014. (my, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LINDA PARDEE

CIVIL ACTION

v.

NO. 13-5662

STATE FARM INSURANCE COMPANIES, ET AL.

SECTION "F"

ORDER AND REASONS
Local Rule 7.5 of the Eastern District of Louisiana requires
that memoranda in opposition to a motion be filed eight days prior
to the noticed submission date.

No memoranda in opposition to The

Federal Emergency Management Agency's motion for partial dismissal,
noticed for submission on March 12, 2014, has been submitted.
Accordingly,

the

motion

is

deemed

to

be

unopposed,

and

further, it appearing to the Court that the motion has merit,1 IT

1

Plaintiff alleges that FEMA failed to adequately
compensate her for flood losses sustained as a result of Hurricane
Isaac; she alleges breach of contract, bad faith claims adjusting,
negligent claims adjusting, and intentional infliction of emotional
distress. She demands a jury trial. FEMA seeks dismissal of the
plaintiff's extra-contractual claims on the ground that courts have
rejected these types of claims arising out of the NFIA because the
SFIP excludes incidental, consequential and extra-contractual
claims of all types in SFIP Section V(A)(1)-(7); FEMA also seeks
dismissal of the plaintiff's extra-contractual claims based in
state law on the ground that such claims are preempted by SFIP
Section IX. Finally, FEMA contends there is no right to a jury
under the NFIA, and the Seventh Amendment's jury trial right does
not attach. The Court agrees: plaintiff's extra-contractual claims
must be dismissed and her jury demand stricken.
The United States has not waived its immunity to suit for
extra-contractual claims. See 42 U.S.C. § 4072; see also Wright v.
Allstate Ins. Co., 500 F.3d 390, 397-98 (5th Cir. 2007)(holding that
neither the language of the NFIA nor the SFIP provides an express
1

IS ORDERED that FEMA'S motion for partial dismissal is GRANTED as
unopposed. The plaintiff's extra-contractual claims are dismissed;
plaintiff is precluded from attempting to recover any damages other
than those permissible for her breach of contract claim; and,
plaintiff's demand for a jury trial is stricken.

New Orleans, Louisiana, March 7, 2014

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

authorization for a policyholder to bring an extra-contractual
claim). And, the right to a jury trial does not apply to actions
against the United States government, absent an express statutory
grant by Congress. See Lehman v. Nakshian, 453 U.S. 156, 160-61
(1981). There is no express grant of authority for a jury trial in
the NFIA or its regulations. See Grissom v. Liberty Mut. Fire Ins.
Co., 678 F.3d 397, 402 (5th Cir. 2012)(Even in cases where a WYO
insurer has issued the SFIP, the right to a jury trial has not been
extended by the government.). Finally, the plaintiff's attempt to
recover the following damages must fail: loss of use of property,
additional living expenses, loss of enjoyment of property,
diminution in value of property, repair and remediation expenses,
damage to and loss of contents, mental anguish, and attorney's
fees, litigation costs, and interest. These damages are neither
explicitly nor implicitly authorized by the NFIA. See Wright, 500
F.3d at 397-98; see also 44 C.F.R. § 61, App A(1) at Art. V.
2