Rodriguez et al v. Fidelity National Property and Casualty Insurance Company et al

Filing 31

ORDER & REASONS: ORDERED that 29 Motion for Summary Judgment is hereby GRANTED as unopposed. The plaintiffs' lawsuit is hereby dismissed. Signed by Judge Martin L.C. Feldman. (cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROLAND RODRIGUEZ and
CHERYL TUFARO

CIVIL ACTION

v.

NO. 13-5927

FIDELITY NATIONAL PROPERTY
AND CASUALTY COMPANY, 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.
motion

for

summary

judgment

No memoranda in opposition to the
filed

by

Wright

National

Flood

Insurance Company, f/k/a Fidelity National Indemnity Insurance
Company, noticed for submission on August 27, 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

Plaintiffs, claiming property damage due to flooding
occasioned by Hurricane Isaac, seek to recover additional benefits
pursuant to a Standard Flood Insurance Policy issued by Wright
National Flood Insurance, a Write-Your-Own Program insurance
carrier participating in the U.S. Government's National Flood
Insurance Program.
Wright National Flood Insurance now seeks
judgment as a matter of law dismissing the plaintiffs' claims on
the ground that the plaintiffs failed to submit a timely signed and
sworn proof of loss to support the amounts claimed in this lawsuit
as required by Article VII(J)(4) of the SFIP. The record
establishes that the plaintiffs submitted an initial proof of loss,
the defendants issued a payment and a supplemental payment such
that plaintiffs thus far have been paid $222,233.86. However, the
undisputed facts in the record also show that the plaintiffs have
1

IS ORDERED: that Wright National Flood Insurance Company's motion
for

summary

judgment

is

hereby

GRANTED

as

unopposed.

The

plaintiffs' lawsuit is hereby dismissed.
New Orleans, Louisiana, August 25, 2014

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

not submitted a proof of loss for any amounts sought in this
lawsuit.
It is well-settled that an insured's failure to comply
with the proof of loss requirement bars recovery pursuant to an
SFIP. See, e.g., Collins v. National Flood Ins. Program, 394 Fed.
Appx. 177, 180 (5th Cir. 2010); Marseilles Homeowners Condominium
Assoc., Inc. v. Fidelity National Ins. Co., 542 F.3d 1053, 1056 (5th
Cir. 2008). In strictly enforcing the applicable regulations, the
Fifth Circuit and other Sections of this Court hold that the rule
barring recovery absent submission of a timely sworn proof of loss
applies regardless of whether it is an initial claim by an insured,
or a supplemental claim filed with the insurer. See Richardson v.
Am. Baners. Ins. Co. of Fla., 279 Fed. Appx. 295, 298-99 (5th Cir.
2008)(unpublished)(citing 44 C.F.R. pt. 61, app. A(1), arts. VII.J,
VII.R.); see also Roussell v. Allstate Ins. Co., --- F. Supp. 2d --, 2014 WL 2740259, at *5-6 (E.D. La. June 17, 2014)(Brown, J.);
Howell-Douglas v. Fidelity Nat'l Indem. Ins. Co., --- F. Supp. 2d
---, 2014 WL 2506469, at *2-3 (E.D. La. June 3, 2014)(Vance, J.);
Morin v. Am. Bankers Ins. Co. of Florida, No. 13-5972, 2014 WL
949424, at *1, 2-3 (E.D. La. Mar. 10, 2014)(Africk, J.); Fowl, Inc.
v. Fidelity Nat'l Prop. & Cas. Ins. Co., No. 12-283, 2013 WL
392599, at *1 (E.D. La. Jan. 31, 2013)(Barbier, J.).
The plaintiffs submit no papers in opposition and fail to
raise any dispute as to whether they complied with this condition
precedent for the additional sums they now seek. The Court finds
that the plaintiffs' claims against the defendant fail as a matter
of law because there is no genuine dispute as to any material fact
regarding whether the plaintiffs complied with the SFIP's proof of
loss requirement with respect to the amounts plaintiffs seek to
recover in this litigation. Accordingly, Wright is entitled to
judgment as a matter of law.
2