Breaux, Sr. et al v. Louisiana Citizens Property Insurance Corporation et al

Filing 33

ORDER AND REASONS denying 24 Motion for Summary Judgment. Signed by Chief Judge Sarah S. Vance on 1/5/15. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RAY BREAUX and TRACEY BREAUX,

CIVIL ACTION

Plaintiffs,
NO: 14-208
VERSUS
LOUISIANA CITIZENS PROPERTY
INSURANCE CORPORATION, and
ALLSTATE INSURANCE COMPANY

SECTION: R(1)

Defendants.

ORDER
Before the Court is defendant Allstate Insurance Company's
motion for summary judgment.

The Court denies the motion because

a genuine question of material fact exists as to whether plaintiffs
submitted the necessary documentation to make out a valid claim
under their Standard Flood Insurance Policy.

I.

Background
Plaintiffs

Ray

and

Tracey

Breaux

insured

their

LaPlace,

Louisiana home with a Standard Flood Insurance Policy issued by
Allstate.

The policy has coverage limits of $135,000 for the

dwelling and $60,000 for personal property, both subject to a
$1,000 deductible.1

Hurricane Isaac caused substantial damage to

plaintiffs' home, and they filed a claim with Allstate to recover

1

R. Doc. 24-13 at 2.

for flood loss.

After inspecting plaintiffs' property, Allstate

paid $37,368.10 for plaintiffs' dwelling claim and $51,557.70
plaintiffs' contents claim.2

for

After receiving these payments,

plaintiffs filed a supplemental proof of loss claiming $214,880.13
in covered damages.3

Allstate denied coverage for the additional

amount claimed in the supplemental proof of loss.
On December 11, 2013, plaintiffs filed suit in Louisiana state
court against Allstate and Louisiana Citizens Property Insurance
Corporation.4

Allstate removed the matter to federal court and now

moves for summary judgment.

II.

Legal Standard
Summary judgment is warranted when "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(a);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986);
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
When assessing whether a dispute as to any material fact exists,
the

Court

considers

"all

of

the

evidence

in

the

record

but

refrain[s] from making credibility determinations or weighing the

2

3

Id. at 2-3.
R. Doc. 24-9.

4

R. Doc. 1-1. Plaintiffs have settled their claim against
Louisiana Citizens Property Insurance Corporation.
2

evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins.
Co.,

530

inferences

F.3d
are

395,
drawn

398–99
in

(5th

favor

Cir.
of

the

2008).

All

nonmoving

reasonable
party,

but

"unsupported allegations or affidavits setting forth ultimate or
conclusory facts and conclusions of law are insufficient to either
support or defeat a motion for summary judgment." Galindo v.
Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985)(internal
quotations omitted); see also Little, 37 F.3d at 1075.
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,

1264–65

(5th

Cir.

1991)(internal quotations omitted). The nonmoving party can then
defeat the motion by either countering with evidence sufficient to
demonstrate the existence of a genuine dispute of material fact, or
“showing that the moving party's evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party." Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden

3

then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest
upon the pleadings, but must identify specific facts that establish
a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 1075
("Rule 56 'mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear
the burden of proof at trial.'" (quoting Celotex, 477 U.S. at
322)).

III. Discussion
Allstate issued the Breaux's flood policy as part of the
National Flood Insurance Program ("NFIP").

Congress created the

NFIP in 1968 to provide affordable flood insurance to flood prone
areas.

See Gowland v. Aetna, 143 F.3d 951, 953 (5th Cir. 1998).

FEMA operates the program and issues policies directly or through
private insurers, such as Allstate, known as “Write Your Own”
companies.

Id.

Whether FEMA or a “Write Your Own” company issues

a policy, claims are paid directly from the federal treasury.

Id.

Policies are issued in the form of a Standard Flood Insurance
Policy (SFIP), and no provision of the policy can be altered,
varied, or waived without the express written consent of the
4

Federal Insurance Administrator.
61.13(d).

Since

pay-outs

Id.; 44 C.F.R. §§ 61.4(b),

implicate

the

federal

treasury,

provisions of the SFIP must be strictly enforced and construed.
Gowland, 143 F.3d at 954; Wright v. Allstate Ins. Co., 415 F.3d
384, 386-87 (5th Cir. 2005).
“A NFIP participant cannot file a lawsuit seeking further
federal benefits under the SFIP unless the participant can show
prior compliance with all policy requirements.”

Richardson v. Am.

Bankers Ins. Co. of Fla., 279 F. App'x 295, 298 (5th Cir. 2008)
(citing 44 C.F.R. pt. 61, app. A(1) art. VII(R)).

In case of a

flood loss to insured property, the insured must satisfy several
requirements before bringing a lawsuit. See 44 C.F.R. pt. 61, app.
A(1) art. VII(J).

Foremost, the insured must provide a complete,

sworn Proof of Loss within 60 days after the loss, “or within any
extension authorized by FEMA.”

Forman v. FEMA, 138 F.3d 543, 545

(5th

of

Cir.

1998).

The

proof

loss

must

include

documents

supporting the claimed amount, including "[s]pecifications of
damaged buildings and detailed repair estimates," as well as
"inventory of damaged property showing the quantity, description,
actual cash value, and the amount of loss."

44 C.F.R. pt. 61, app.

A(1) art. VII(J). These are strict requirements. Forman, 138 F.3d
at 546; Richardson, 279 F. App'x at 298.
failure

to

provide

an

insurer

precludes recovery under a SFIP.

with

Thus, an insured's

supporting

documentation

See Marseilles Homeowners Condo.
5

Ass'n, Inc. v. Fid. Nat. Ins. Co., 542 F.3d 1053, 1055 (5th Cir.
2008) (filing a complete proof of loss is a "condition precedent"
to bringing suit for proceeds under a SFIP); Wells v. Fidelity Nat.
Ins. Co., CIV. A. No. 06-5381, 2008 WL 2781539, at *4 (E.D. La.
July

14,

2008)

("Plaintiff's

failure

to

file

[supporting]

documentation prior to filing suit is fatal to her claim.").
Allstate moves the Court for summary judgment on the ground
that plaintiffs failed to submit the necessary documentation to
support their supplemental proof of loss.5

Plaintiffs do not

dispute that the SFIP required them to provide Allstate with
supporting documentation.
did

in

fact

provide

Instead, plaintiffs contend that they

Allstate

with

the

required

documents.6

Plaintiffs provide the affidavit of their independent adjustor,
Michael Michio, to support their position.7
The Court finds that a question of fact exists as to whether
plaintiffs submitted the necessary documents to support their
supplemental proof of loss.

In his sworn affidavit, Mr. Michio

states that he submitted a detailed estimate of the flood-related
damage to Allstate that included "(1) the materials required to
fully repair the home; (2) the specific work required for such

5

R. Doc. 24.

6

R. Doc. 26 at 5. ("Mr. and Mrs. Breaux provide ample
evidence that they submitted the supporting documentation that
Allstate . . . now claims it never received.").
7

R. Doc. 26-1.
6

repairs; (3) the cost of the materials and work; (4) the quantity
of materials; (5) the total calculation of loss, including service
charges, overhead costs, and profit; and (6) photographs of the
damage to the property."8
estimate

falls

requirement.

short

of

Allstate does not contend that such an
the

SFIP's

supporting

documentation

Instead, Allstate asks the Court to disregard the

affidavit because plaintiffs have not provided any corroborating
documentary evidence.9

Mr. Michio attests that he searched his

files but was unable to find a copy of his estimate.10

Allstate

argues that Mr. Michio's assertion that he submitted the estimate
but has since lost any proof of submission is incredible in light
of his self-described practice of submitting estimates to insurance
providers "multiple times by fax, email and U.S. mail."11
Although the absence of corroborating evidence is conspicuous,
Rule

56

does

determinations.

not

permit

the

Court

to

make

credibility

Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d

1257, 1263 (5th Cir. 1991) ("In resolving the motion [for summary
judgement], the court may not undertake to evaluate the credibility
of witnesses, weigh the evidence, or resolve factual disputes . .

8

Id. at 2.

9

R. Doc. 27-2 at 2. ("What faith can be placed in this
assertion when Mr. Michio does not have the estimate that he
insists was submitted?").
10

R. Doc. 26-1 at 2.

11

Id. at 3 (citing R. Doc. 26-1 at 2).
7

. .").

In his affidavit, Mr. Michio states that he submitted the

estimate to Allstate on the plaintiffs' behalf.

The Court is not

free to disregard Mr. Michio's sworn testimony merely because it is
arguably self-serving.

C.R. Pittman Const. Co., Inc. v. Nat. Fire

Ins. Co. of Hartford, 453 F. App'x 439, 443 (5th Cir. 2011) ("[A]n
affidavit

based

on

personal

knowledge

and

containing

factual

assertions suffices to create a fact issue, even if the affidavit
is arguably self-serving."). To the extent that Allstate finds Mr.
Michio's claim incredible in light of the circumstances, Allstate
can cross-examine Mr. Michio on this point at trial.

IV.

Conclusion
Plaintiffs have provided sufficient evidence to demonstrate a

genuine question of fact as to whether they submitted the required
documents to support their supplemental proof of loss.

Therefore,

the Court denies Allstate's motion for summary judgment.

New Orleans, Louisiana, this ___ day of January, 2015.
5th

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

8