Lusco v. Allstate Insurance Company et al

Filing 29

ORDER & REASONS granting 24 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 7/30/2014. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROBERT J. LUSCO, JR.

CIVIL ACTION

v.

NO. 13-6634

ALLSTATE INSURANCE COMPANY,
ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court is The Standard Fire Insurance Company's
motion for summary judgment.

For the reasons that follow, the

motion is GRANTED.
Background
This is a Hurricane Isaac flood insurance coverage dispute.
The Standard Fire Insurance Company, a participant in Federal
Emergency

Management

Agency's

Write

Your

Own

flood

insurance

program, issued a Standard Flood Insurance Policy to Robert J.
Lusco, Jr. for his property located at 549 Camelia Avenue in
LaPlace, Louisiana.

When Hurricane Isaac hit on August 29, 2012,

Mr. Lusco's property suffered flood damage.
On September 5, 2012 an independent adjuster inspected the
property.

Mr. Lusco requested a $15,000 advance payment for

covered building damage and a $5,000 advance payment for covered
contents damage.

Standard Fire approved these requests and, on

September 10, 2012, advanced the requested payments.
On October 20, 2012 Mr. Lusco submitted to Standard Fire a

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signed and sworn proof of loss, contending that his building and
contents losses totaled $75,076.12.

Standard Fire approved the

October 20 proof of loss, and paid Mr. Lusco $29,221.93 for
building damage and $23,854.19 for contents damage.

Given the

prior advance, this represented payment in full of the damages
claimed in the proof of loss.
FEMA extended the proof of loss submission deadline for
Hurricane Isaac-related claims to April 28, 2013.

Mr. Lusco did

not submit to Standard Fire any additional proof of loss.

But on

December 12, 2013 Mr. Lusco sued Standard Fire, along with his
windstorm insurer, Allstate Insurance Company.1

On June 26, 2014

Mr. Lusco submitted to Standard Fire an additional estimate of
flood-related damage, which was prepared by Rich Lyon, a licensed
public adjustor and residential contractor; Mr. Lyon estimated a
replacement cost value of $91,697.96. Standard Fire now seeks
summary judgment dismissing the plaintiff's claims on the ground
that the plaintiff failed to submit a timely signed and sworn proof
of loss to support his supplemental claim.
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine issue as to
any material fact such that the moving party is entitled to

1

On July 2, 2014 this Court granted the plaintiff's and
Allstate's joint motion to dismiss the plaintiff's claims against
Allstate.
2

judgment as a matter of law.

No genuine issue of fact exists if

the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.

See Matsushita Elec. Indus. Co.

v. Zenith Radio., 475 U.S. 574, 586 (1986).

A genuine issue of

fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.

See

id.

Therefore,

"[i]f

the

evidence

is

merely

colorable, or is not significantly probative," summary judgment is
appropriate.

Id. at 249-50 (citations omitted).

Summary judgment

is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).

See Celotex Corp. v. Catrett,

In this regard, the non-moving party

must do more than simply deny the allegations raised by the moving
party.

See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d

646, 649 (5th Cir. 1992).

Rather, he must come forward with

competent evidence, such as affidavits or depositions, to buttress
his claims.

Id.

Hearsay evidence and unsworn documents that

cannot be presented in a form that would be admissible in evidence
at trial do not qualify as competent opposing evidence.

Martin v.

John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed.R.Civ.P. 56(c)(2).

Finally, in evaluating the summary

3

judgment motion, the Court must read the facts in the light most
favorable to the non-moving party.

Anderson, 477 U.S. at 255.

II.
The SFIP mandates that an insured who suffers flood loss to
his property:
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 [certain information]....
...
You may not sue us to recover money under this policy
unless you have complied with all the requirements of the
policy. If you do sue, you must start the suit within
one year after the date of the written denial of all or
part of the claim, and you must file the suit in the
United States District Court of the district in which the
covered property was located at the time of loss. This
requirement applies to any claim that you may have under
this policy and to any dispute that you may have arising
out of the handling of any claim under the policy.
44 C.F.R. pt. 61, app. A(1) arts. VII(J), VII(R).
Courts interpret and enforce these SFIP provisions strictly.
See, e.g., Marseille Homeowners Condominium Ass., Inc. v. Fidelity
Nat’l

Ins.

Co.,

542

F.3d

1053,

1055-56

(5th

Cir.

2008)(per

curiam)(holding that insured must file a sworn proof of loss before
seeking damages in excess of the amount paid by the insurer);
Wright

v.

Allstate

Ins.

Co.,

415

F.3d

384,

387-88

(5th

Cir.

2005)(holding that insurer was not equitably estopped from raising
insured's failure to file an adequate proof of loss); Gowland v.
Aetna, 143 F.3d 951, 954 (5th Cir. 1998)("As the provisions of an
insurance policy issued pursuant to a federal program must be
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strictly construed and enforced, we hold that an insured's 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"); Forman
v. FEMA, 138 F.3d 543, 545 (5th Cir. 1998)("Under FEMA regulations,
strict compliance is required to all terms of the SFIP.").
“[A] NFIP participant [like the plaintiff] cannot file a
lawsuit seeking further federal benefits under the SFIP unless the
participant

can

requirements.”
Fed.

Appx.

show

prior

compliance

with

all

policy

Richardson v. Am. Baners. Ins. Co. of Fla., 279

295,

298

(5th

Cir.

2008)(unpublished)(emphasis

in

original)(citing 44 C.F.R. pt. 61, app. A(1), arts. VII.J, VII.R.).
“In case of a flood loss to insured property, [the insured] must”
satisfy several requirements before bringing a lawsuit.
pt. 61, app. A(1) art. VII(J).

44 C.F.R.

Foremost, the insured must provide

a signed and sworn Proof of Loss within 60 days after the loss, “or
within any extension authorized by FEMA.” Forman v. FEMA, 138 F.3d
at 545.

The failure to submit a complete, sworn proof of loss with

supporting documentation is fatal to a plaintiff’s claim for flood
damage.

See Marseilles Homeowners, 542 F.3d at 1053.

For Hurricane Isaac-related claims, FEMA extended the proof of
loss submission deadline to April 28, 2013.

Having already

submitted one proof of loss for which he received full payment, Mr.
Lusco had until April 28, 2013 to submit a signed and sworn proof

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of loss for the additional sums he claims he is owed under the
policy.

The record confirms that he failed to do so.

Standard Fire submits that Mr. Lusco failed to submit a timely
proof of loss for any additional amounts he seeks to recover under
the policy beyond those provided in the October 20, 2012 proof of
loss, which was paid in full by Standard Fire.

Mr. Lusco counters

that, by submitting the October 20, 2012 proof of loss, which he
later supplemented on June 26, 2014 with a detailed, itemized
estimate of the damage to his home, he substantially complied with
the proof of loss requirements.
In strictly enforcing the applicable regulations, the Fifth
Circuit has foreclosed the plaintiff's arguments that he need not
submit a timely, signed and sworn proof of loss when he seeks
additional payments, as well as his argument that he substantially
complied with the proof of loss requirements.

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.).2

Bound by the text of the applicable standard policy

2

Although Richardson is unpublished, the Fifth Circuit
has observed:
Unpublished
opinions
generally
are
not
precedent. We cite these decisions for their
persuasive value and factual similarity.
Furthermore
Richardson's
reasoning
was
approved in a published opinion, Marseilles,
542 F.3d at 1056, and, thus, is binding to
that extent.
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provisions and the case literature, other Sections of this Court
continue

to

strictly

enforce

requirements, and hold that

SFIP

statutory

and

regulatory

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, e.g., 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 summary judgment record reveals no genuine dispute as to
these facts: Standard Fire paid in full the amounts Mr. Lusco
sought in accordance with his October 20, 2012 proof of loss.

Mr.

Lusco now seeks to recover funds beyond what Standard Fire already
has disbursed; he failed to submit a timely, signed and sworn proof
of loss for the supplemental claim he now makes in this lawsuit.

Kidd v. State Farm Fire & Cas. Co., 392 Fed.Appx. 241, 244 (5th Cir.
2010)(unpublished). In Marseilles, a published opinion, the Fifth
Circuit has "follow[ed] the persuasive analysis in Richardson,
which simply applies controlling precedent in a manner consistent
with prior precedent." See Marseilles, 542 F.3d at 1056 (citing
cases).
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Failure

to

comply

with

this

proof

of

loss

requirement

--

a

mandatory condition precedent to filing suit -- is fatal to his
claim. Accordingly, Standard Fire's motion for summary judgment is
GRANTED, and the plaintiff's claims are hereby dismissed.

New Orleans, Louisiana, July 30, 2014

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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