Burks v. State Farm Fire and Casualty Company et al
ORDER AND REASONS denying 11 Motion for Summary Judgment. Signed by Judge Susie Morgan. (bwn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
STATE FARM FIRE AND
CASUALTY COMPANY, et al.
ORDER & REASONS
The Court has before it a motion for summary judgment filed by Defendant FEMA,
which Plaintiff Ivory Burks opposes.1 The Court has reviewed the briefs and the law and
now issues this Order and Reasons denying the motion for summary judgment.
This case arises out of a Standard Flood Insurance Policy ("SFIP") issued by FEMA
insuring Plaintiff's home in LaPlace, Louisiana.2 After his home was damaged in Hurricane
Isaac, Plaintiff timely notified FEMA of the loss and FEMA sent an independent adjuster
to inspect the property. Initially, the adjuster recommended a total payment of $54,988.21,
divided between the various coverages available under the policy. On October 8, 2012,
Plaintiff signed and submitted two signed and sworn proofs of loss for a total of $54,988.21,
as recommended by the adjuster. On both proofs of loss, Plaintiff handwrote at the bottom
of the page that the claims were "interim" and for the "uncontested amount" only. It is
undisputed that FEMA paid the $54,988.21 covered by these two sworn proofs of loss by
R. Docs. 11, 15.
With one notable exception discussed below, the facts are largely undisputed.
checks issued on October 17, 2012.
At some point, Plaintiff retained the services of ProClaim, a public adjuster. Plaintiff
submits an affidavit from the owner of ProClaim, Michael Michio, asserting that on October
10, 2012, he sent a third proof of loss, signed by Plaintiff, claiming $303,429.00 in
additional payments.3 The affidavit (1) includes what appears to be a copy of a signed,
sworn proof of loss dated October 10, 2012, and (2) details the steps taken to fax that proof
of loss to FEMA.4 FEMA's records apparently contain no record of receipt of this October
10, 2012 proof of loss.5 Thus, there is a genuine fact question surrounding the October 10,
2012, proof of loss.
Subsequently, FEMA's independent adjuster and Plaintiff's public adjuster met,
which led to a recommendation of an additional payment of $32,983.98. Plaintiff
submitted another sworn proof of loss (either the third or fourth) dated November 30, 2012
for $32,983.98, without any handwritten annotation.
FEMA timely paid the full
$32,983.98 claimed in that proof of loss.
To reiterate: according to FEMA, Plaintiff submitted three sworn proofs of loss, all
of which were paid in full. According to Plaintiff and his public adjuster, Plaintiff submitted
a fourth sworn proof of loss, dated October 10, 2012, which was never acted upon by FEMA.
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
R. Doc. 15-1 at 2, ¶ 5.
R. Doc. 15-1 at p. 2, ¶¶ 6-8; p. 78.
R. Doc. 11-2 at ¶ 17.
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).
If the dispositive issue is one on which the moving party will bear the burden of proof
at trial, the moving party “must come 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). If the moving party fails to carry this
burden, the motion must be denied. If the moving party successfully carries this burden,
the burden then shifts to the non-moving party to show that a genuine issue of material fact
exists. Id. at 322-23. Once the burden has shifted, the non-moving party must direct the
Court’s attention to something in the pleadings or other evidence in the record that sets
forth specific facts sufficient to establish that a genuine issue of material fact does indeed
exist. Id. at 324.
If the dispositive issue is one on which the non-moving party will bear the burden
of proof at trial, however, the moving party may satisfy its burden by simply pointing out
that the evidence in the record is insufficient with respect to an essential element of the
non-moving party’s claim. See Celotex, 477 U.S. at 325. The nonmoving party must then
respond, either by “calling the Court’s attention to supporting evidence already in the
record that was overlooked or ignored by the moving party” or by coming forward with
additional evidence. Celotex, 477 U.S. at 332-33 & 333 n.3.
“An issue is material if its resolution could affect the outcome of the action.”
DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005). When assessing whether a
material factual dispute 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); see also
Reeves v. Sanderson Plumbing, Inc., 530 U.S. 133, 150-51 (2000). All reasonable
inferences are drawn in favor of the non-moving party. Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994). There is no genuine issue of material fact if, even viewing the
evidence in the light most favorable to the non-moving party, no reasonable trier of fact
could find for the non-moving party, thus entitling the moving party to judgment as a
matter of law. Smith v. Amedisys, 298 F.3d 434, 440 (5th Cir. 2002).
Flood insurance policies 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 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).
Defendant's argument for summary judgment is straightforward. According to
FEMA's records, Plaintiff submitted only three sworn proofs of loss for specific amounts
and he was paid in full for the amounts he claimed in all three proofs of loss. Without
having filed an additional proof of loss claiming any additional amounts, Defendant argues,
Plaintiff has not complied with the requirements of the SFIP and he cannot bring this
lawsuit for additional payment under his policy. In response, Plaintiff contends that the
four proofs of loss he submitted "gave FEMA sufficient information to meaningfully
evaluate" his claim, which satisfies the requirements of the SFIP.
There is a genuine factual dispute as to whether a fourth sworn proof of loss was
submitted. The affidavit from FEMA's expert, based on his review of the NFIP system of
records, reports only three proofs of loss, all of which were paid. Plaintiff's public adjuster
asserts that a fourth proof of loss was submitted by fax on October 12, 2012, and he
provides what appears to be a copy of that submission. This Court must resolve all factual
disputes in favor of Plaintiff, so the Court assumes for the purposes of this summary
judgment motion that the October 12, 2012 proof of loss was submitted. The October 12,
2012 proof of loss claimed $303,429.00 under the policy, which exceeds the combined total
paid pursuant to the other three proofs of loss. Nothing in the record suggests FEMA
responded to the October 12, 2012 proof of loss. Therefore, there is a fact question whether
Plaintiff submitted a sworn proof of loss claiming amounts which FEMA never paid, which
would satisfy the SFIP requirements for bringing suit.
Because of the fact questions regarding the existence, transmission, receipt, and
sufficiency of the October 12, 2012 proof of loss, summary judgment on the grounds
articulated by FEMA in its motion is inappropriate at this time.
IT IS ORDERED that FEMA's motion for summary judgment is DENIED.
New Orleans, Louisiana, this 14th day of April, 2014.
UNITED STATES DISTRICT JUDGE
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