Sylve v. American Bankers Insurance Company of Florida

Filing 15

ORDER AND REASONS granting 10 Motion to Dismiss and Plaintiff's claims raised in this action are hereby DISMISSED WITH PREJUDICE, each party to bear its own costs. Signed by Judge Greg Gerard Guidry on 2/5/2024. (lag)

ORDER AND REASONS
The Court has before it Defendant American Bankers Insurance Company of Florida’s
(“ABIC”) Motion to Dismiss the claims raised against it by Plaintiff Roy Sylve in the abovecaptioned action. R. Doc. 10. Plaintiff has responded in opposition. R. Doc. 13. Having considered
the parties’ briefing, as well as the applicable law and facts, the Court will GRANT ABIC’s
Motion.
I.

BACKGROUND

This case arises from damage allegedly caused to a property owned by Plaintiff and located
at 125 Johnson St, Port Sulphur, Louisiana (the “Property”) when Hurricane Ida hit on August 29,
2021. R. Doc. 1 at 1–3. On that date, the Property was insured under a Standard Flood Insurance
Policy with ABIC (the “Policy”). Id. at 1; see also R. Doc. 10-3. Plaintiff filed suit on August 24,
2023, alleging ABIC breached its contractual obligations under the Policy by failing to pay out to
Plaintiff the full amount of his claimed losses. Id. at 5–7. Plaintiff also seeks statutory penalties
under La. R.S. 22:1892 and La. R.S. 22:1973, pre- and post-judgment interest, and attorneys’ fees.
Id. at 7–10. ABIC now moves the Court to dismiss Plaintiff’s breach of contract claim as time1

barred and his claims for statutory penalties, interest, and attorneys’ fees as preempted by federal
law. R. Doc. 10-1 at 7–19.
II.

APPLICABLE LAW

Rule 12(b)(6) provides that an action may be dismissed “for failure to state a claim upon
which relief can be granted.” To survive a motion to dismiss under Rule 12(b)(6), a “complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A court’s task in considering whether a plaintiff has stated a plausible
claim to relief is to “determine whether the plaintiff has stated a legally cognizable claim that is
plausible, not to evaluate the plaintiff’s likelihood of success.” Body by Cook, Inc. v. State Farm
Mut. Auto. Ins., 869 F.3d 381, 385 (5th Cir. 2017) (citing Doe ex rel. Magee v. Covington Cty.
Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012)). Thus, courts must construe the
allegations in the complaint in the light most favorable to the plaintiff, accepting as true all wellpleaded factual allegations and drawing all reasonable inferences in the plaintiff’s favor. Lovick v.
Ritemoney Ltd., 378 F.3d 433, 437 (5th Cir. 2004) (citing Herrmann Holdings Ltd. v. Lucent
Techs., Inc., 302 F.3d 552, 558 (5th Cir. 2002)). A complaint need not contain detailed factual
allegations, but must offer more than mere labels, legal conclusions, or formulaic recitations of the
elements of a cause of action. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). When
considering a Rule 12(b)(6) motion, a district court is generally limited to the four-corners of the
complaint, but may consider “documents incorporated into the complaint by reference or integral
to the claim, items subject to judicial notice, matters of public record, orders, items appearing in
the record of the case, and exhibits attached to the complaint whose authenticity is unquestioned.”

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Meyers v. Textron, Inc., 540 F. App'x 408, 409 (5th Cir. 2013) (citing Tellabs, Inc. v. Makor Issues
& Rights, Ltd., 551 U.S. 308, 322 (2007)).
III.

DISCUSSION

As an initial matter, the Court notes Plaintiff concedes in his opposition that his extracontractual claims are preempted by federal law. R. Doc. 13 at 1. The Court will thus grant ABIC’s
Motion to Dismiss as unopposed as to those claims. Accordingly, the Court must further consider
only ABIC’s argument that Plaintiff’s remaining breach of contact claim is time-barred.
ABIC asserts it is a Write Your Own (“WYO”) Program insurance provider and issued
Plaintiff the Policy in its fiduciary capacity as a “fiscal agent” of the Federal Government, see 42
U.S.C. §4071(a)(1), under the National Flood Insurance Program (“NFIP”) created by the National
Flood Insurance Act of 1968, 42 U.S.C. § 4001, et seq. R. Doc. 10-1 at 1. The NFIP was established
by Congress to provide flood insurance at or below actuarial rates, funded by the United States
Treasury, for properties in flood-prone areas in which it is “uneconomical” for private insurance
companies to provide coverage. Gowland v. Aetna, 143 F.3d 951, 953 (5th Cir. 1998). The NFIP
is administered by Federal Emergency Management Agency (“FEMA”), see 42 U.S. Code § 4005,
which uses private insurance companies like ABIC as agents of the United States to implement
the NFIP by issuing FEMA’s Standard Flood Insurance Plans (“SFIP”), like the Policy. See 42
U.S.C. § 4081(a); 44 C.F.R. § 62.23(g). Any civil action arising from the denial of a claim under
a SFIP so issued must be filed “within one year after the date of mailing of notice of disallowance
or partial disallowance” of the claim by the insurer. 42 U.S.C. § 4072.
ABIC argues Plaintiff’s breach of contract claim, filed on August 24, 2023, is time-barred
as raised beyond that one-year statute of limitations. R. Doc. 10-1 at 7–11. It argues the one-year
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period began to run on December 10, 2021, when ABIC sent a letter to Plaintiff denying his claim
in part. Id. at 10–11; see R. Doc. 10-4. In opposition, Plaintiff argues the denial letter does not
qualify as a “notice of disallowance or partial disallowance” such that it could incept the limitation
period. R. Doc. 13 at 3–5. Alternatively, Plaintiff asserts ABIC’s Motion is premature because no
discovery has yet been conducted to confirm ABIC is in fact a WYO carrier under the NFIP such
that the one-year limitation period applies to claims arising under the instant Policy. Id. at 5.
As to the latter argument, the Court finds Plaintiff’s suggestion that ABIC may not actually
be a WYO carrier under the NFIP, at least in its capacity as Plaintiff’s insurer, to be perplexing
and disingenuous. Plaintiff complains the Court should not rely on a “self-serving declaration from
a director of [ABIC]’s parent company” to conclude ABIC is a WYO carrier under the NFIP. Id.;
see R. Doc. 10-2. But, considering only the complaint and “documents incorporated into the
complaint by reference or integral to the claim[,]” see Meyers, 540 F. App'x at 409, it is plain on
the face of the Policy alone that the Policy is a FEMA SFIP issued by ABIC to Plaintiff under the
NFIP. See R. Doc. 10-3. Additionally, as noted supra, Plaintiff concedes that the extra-contractual
claims raised in this action are preempted by federal law. R. Doc. 13 at 1. But the reason those
claims are preempted is precisely because the Policy was issued under the NFIP and is
underwritten by federal funds. See R. Doc. 10-1 at 11–19 (citing, inter alia, Wright v. Allstate Ins.
Co., 415 F.3d 384 (5th Cir. 2005); Gallup v. Omaha Prop. and Cas. Ins. Co., 434 F.3d 341 (5th
Cir. 2005); Wright v. Allstate Ins. Co., 500 F.3d 390 (5th Cir. 2007)). If Plaintiff truly doubts ABIC
is a WYO carrier under the NFIP, it is unclear why Plaintiff would have conceded the preemption
of those claims.
As to whether ABIC’s December 10, 2021 letter of denial constitutes a “notice of
disallowance or partial disallowance” as anticipated by 42 U.S.C. § 4072, Plaintiff asserts the letter
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is “simply a vague statement . . . that fails to provide sufficient details to Plaintiff regarding his
claim.” R. Doc. 13 at 3. Plaintiff argues this is not a legally sufficient “disallowance” because “the
letter does not state what items from Plaintiff’s initial proof of loss was [sic] denied, approved, or
even considered” and “Plaintiff was left unaware of what portions of the claim, if any, were
approved/denied for the building and contents, other than total payments listed.” Id. at 3–4.
Plaintiff also raises several policy concerns he avers would be implicated by construing this letter
of denial as a legally sufficient disallowance. Id. at 4–5.
However, the Fifth Circuit has rejected a substantively identical argument in McInnis v.
Liberty Mut. Fire Ins. Co., 2022 WL 4594609 (5th Cir. Sept. 30, 2022). In McInnis, the plaintiff
appealed a district court’s determination that her claim under an NFIP SFIP was time-barred,
arguing the defendant insurer’s initial denial letter was not a legally sufficient disallowance that
triggered the limitation period because it contained mere “boilerplate language” unreflective of a
standard claim denial. 2022 WL 4594609, at *3. But the McInnis court affirmed the district court,
explaining the denial letter “plainly put McInnis on notice that a part of her claim had been
disallowed[,]” by stating “content items that were not supported by photographs were not able to
be included in your claim” and referring to the insurer’s “decision to deny coverage.” Id. Thus, the
court held that a letter from an insurer sufficient to put an insured on notice that a part of her claim
has been disallowed is sufficient to trigger Section 4072’s one-year limitation period.
In the instant case, ABIC’s denial letter refers to itself as “this denial[,]” states ABIC
“denied a portion of [Plaintiff’s] claim[,]” and explains that Plaintiff was not entitled to the
$100,000.00 for building damage and $40,000 for contents damage he sought, but only $35,964.21
for building damage and $3,037.97 for contents damage. R. Doc. 10-4 at 1–3. The letter also
notifies Plaintiff of the “Actions Available When You Disagree with your Claims Settlement
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Amount,” including his right to “[f]ile suit within one (1) year of the denial of your claim[,]” noting
“Federal law permits you to file suit . . . within (1) year of when your insurer first denied all or
part of your claim.” Id. at 3–5 (emphasis added). As in McInnis, ABIC’s denial letter plainly put
Plaintiff on notice that a part of his claim had been disallowed. Therefore, the December 10, 2021
denial letter constitutes a “disallowance or partial disallowance” of Plaintiff’s claims under Section
4072 and was legally sufficient to trigger the one-year limitation period during which Plaintiff
could have timely raised his claims. Plaintiff’s complaint filed well over a year beyond the
expiration of that limitation period. See R. Doc. 1. Accordingly, Plaintiff’s claims are untimely
and this case must be dismissed.
IV.

CONCLUSION

For the foregoing reasons, IT IS ORDERED that ABIC’s Motion to Dismiss, R. Doc. 10,
is GRANTED and that Plaintiff’s claims raised in this action are hereby DISMISSED WITH
PREJUDICE, each party to bear its own costs.

New Orleans, Louisiana, this 5th day of February, 2024.

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