Moffett et al v. Computer Sciences Corporation, et al

Filing 700

REPORT AND RECOMMENDATIONS of Special Master re 642 Supplemental MOTION for Partial Summary Judgment for the claim of David and Beverly Motta filed by FEMA Objections to R&R due by 8/22/2011 Responses due by 8/22/2011. Signed by Special Master Dennis M. Sweeney on August 4,2011. (Sweeney, Special Master)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division

THOMAS L. MOFFETT, II, ET AL.
Plaintiffs,
v.
COMPUTER SCIENCES CORPORATION,
ET AL.
Defendants.

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Civil Action No.
8:05-CV-01547

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REPORT AND RECOMMENDATION CONCERNING
WAIVER CLAIM OF DAVID L. AND BEVERLY MOTTA
This constitutes the Report and Recommendation to the Court concerning the
waiver claim of David L. and Beverly Motta pursuant to Part 1.f of the
Memorandum Order of the Court (Document 467). In preparing this report, the
Special Master reviewed the motions, memoranda, affidavits and exhibits
provided in connection with the process specified in the Memorandum Order. As
necessary, the Special Master also reviewed other documents that are part of the
Court filings in this case. The Special Master was also provided by the Federal
Emergency Management Agency (“FEMA”) the computer disc of the
“appropriate documents of record” for this claim, as specified in Part 1.a of the
Memorandum Order. In this case, the documents consist of 183 pages labeled
FEMA-000001 to 000183.

I.

Background
Plaintiffs’ property located at 8812 Hinton Avenue, Millers Island, Maryland,

was insured by Selective Insurance Company of the Southeast (“Selective”) under
Policy Number 0000062738, with a coverage limit of $250,000.00 for
their building with a $5,000.00 deductible.1

See FEMA-000005

and 000036. Plaintiffs also maintained contents coverage with a coverage limit
of $68,600.00 with a $2,000.00 deductible. See FEMA-000005.
On or about September 18, 2003, Hurricane Isabel struck the Middle Atlantic
States, including Maryland, which caused flooding resulting in damage to Plaintiffs’
home. See FEMA-000141. Plaintiffs, with the assistance of their public adjuster,
submitted timely Proofs of Loss totaling $194,365.12. See Doc. No. 318-2 at 119.
On October 9, 2003, Selective issued to Plaintiffs a check in the amount of
$25,000.00 as an advance payment on their contents claim. See FEMA-000373.
On December 23, 2003, Selective issued Plaintiffs a second check in the amount
of $43,600 for the remaining policy limits on their contents claim.

See

FEMA-000564.
On March 30, 2004, Selective issued Plaintiffs a check in the amount of
$50,000.00 as an advance payment on their Building claim. See FEMA-000563.
Selective issued Plaintiffs another $50,000.00 advance payment check on or about
April 22, 2004. See FEMA-000464. On June 28, 2004, as a result of the Hurricane
Isabel Task Force review, Selective issued Plaintiffs a supplemental payment check

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For clarification, Plaintiffs David L. and Beverly Motta own the insured property at issue
although only Beverly Motta is the named insured in the Standard Flood Insurance Policy (SFIP).

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for building coverage totaling $34,312.89.

See FEMA-000466.

Additional

supplemental building checks were issued to Plaintiffs on August 16, 2004
($10,000.00), September 10, 2004 ($10,000.00), September 21, 2004 ($6,279.89),
and October 13, 2004 ($8,426.22). See FEMA-000473 through FEMA-000475, and
000481.
Plaintiffs were paid a total of $169,019.00 under their building coverage and
policy limits of $68,600.00 under their contents coverage. See FEMA-000005. The
amount Plaintiffs received in building coverage was less than the $194,365.12 they
requested on their timely Proof of Loss.

II.

Waiver Claim and Denial
On December 3, 2007, this Court permitted Plaintiffs to submit

applications for waivers to FEMA. See Doc. No. 196 and Doc. No. 197, Order of
December 4, 2007.

On February 25, 2008, Plaintiffs submitted to FEMA a

document entitled “PLAINTIFFS DAVID L. AND BEVERLY MOTTA
INDIVIDUAL APPLICATION FOR WAIVER OF PROOF OF LOSS
REQUIREMENTS.”

The waiver application requested that FEMA compensate

Plaintiffs an additional $47,195.51.

See FEMA-000005.

FEMA denied the

request in a letter dated July 31, 2008. See FEMA-000080 to 000081.

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III.

Reasons for Waiver Denial
The reasons for the denial of the Waiver Claim are found at ¶¶11-19 of the

Supplemental Declaration of Karen Christian for the Claim of Todd and Jean
Lewis 2. Document 642-2. It states:
Plaintiffs’ $47,195.51 shortfall was based on their assertion
that the total FEMA payments for building coverage in the amount
of $169,019.00 (including the $5,000 deductible) did not cover all
the expenses required to repair their home which totaled
$221,214.51. Id.
The maximum recovery Plaintiffs may receive for building
coverage here is $25,346.12 (difference between their timely Proof
of Loss - $194,365.12 and amounts already paid for building
coverage - $169,019.00). See Doc. No. 318-2 at 119.
Plaintiffs’ claimed shortfall amount of $47,195.51 exceeds
the amount Plaintiffs claimed on their timely Proof of Loss amount
($194,365.12) by $21,849.39.
A review of Plaintiffs’ shortfall itemization and supporting
documents indicates that these were the same documents reviewed
by the National Flood Insurance Program, Bureau and Statistical
Agent, the General Adjuster, Hurricane Isabel Task Force and by
FEMA. See FEMA-000051 through FEMA-000065. There is no
evidence Plaintiffs are entitled to any additional compensation.
When reviewing Plaintiffs' waiver application, the
Administrator evaluated the facts and circumstances relating to the
request. See FEMA-000080 and FEMA-000081. Specific to this
case, the Administrator considered the following whether:
1. Policy holder demonstrated additional damages
exist that are covered by the SFIP;
2. Policy holder submitted appropriate
documentation supporting the additional
compensation being requested; and

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Ms. Christian also relied on the Declaration of Deborah Gangemi of Selective Insurance
which is part of the court file in this case. See Document 318-2.

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3. Policy holder provided a reasonable explanation
for the delay in submitting the POL.
Id.
In the letter providing FEMA's determination on Plaintiff’s
waiver application, the Administrator stated:
... you claim your expenses for repair of your home
exceeded the amount paid to you by your Write
Your Own Company, Selective Insurance Company
(Selective). To support the amount claimed, you
provided receipts for your cost spent to repair your
home. Your claim was originally reviewed by an
independent adjuster and subsequently reviewed by
the Hurricane Isabel Task Force that recommended
two supplemental payments that were issued by
Selective. All reviews of your claim concluded that
the final evaluation of your claim was accurate.
The current documents presented appear to be the
same items presented during the handling of your
claim with FEMA and the Hurricane Isabel Task
Force.
Several of the items presented were
previously denied as they are not covered by the
SFIP (detached carport) or involved betterment
(floor joists and fixture replacement).
Further, your waiver resulted in a comprehensive
review of your claim by a FEMA Insurance
Examiner.
After further review, the Insurance
Examiner found no basis to set aside the original
findings.
Id.

Plaintiffs’ waiver application does not meet the
criteria for approval because they failed to demonstrate any
additional damages sought were actually covered by their SFIP.
Plaintiffs’ shortfall included Increased Cost of Compliance
line items (Plaintiffs did not make a claim for these expenses), spiral
staircase replacement, kitchen counters (uncertain of contractor – no
name), plumbing expenses, and pre-existing structural damage. See
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FEMA-000051. Plaintiffs were either not entitled to compensation
for these items or there was no explanation of how the claim related
to the flood loss.
Accordingly, after another comprehensive review of the
claim, FEMA determined no further compensation was warranted.
Id. Plaintiffs’ waiver application was denied for a multitude of
reasons, but primarily because they failed to document any
physical loss by or from flood covered under their SFIP for which
they did not receive full compensation for.
IV.

Plaintiffs’ Assertions

Plaintiffs contends that FEMA has agreed that a timely POL was filed in
this case and that $25,346.12 is now due to Plaintiffs. They seek to have
this paid at this time.
Plaintiffs also seek an additional $21,849.39. They claim that structural
damage of $2,000 should be paid based on what they view as a concession
by FEMA’s agent. Furthermore, they contend that the entire structural
damage amount ($10,000.00 more) should be paid based on the Tanner
and Sons report. Based on Plaintiff’s review, they allege that the remaining
shortfall of $19,849.49 should be paid since they believe that FEMA
agent’s did not correctly evaluate the shortfall claim.

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V.

Special Master’s Analysis 3

FEMA view of the Plaintiffs’ claim is substantially different than Plaintiff
has set out above . FEMA does not concede that the $25,346.12 is due and
owing to Plaintiffs.

Instead, they acknowledge that this amount is the

difference between the amount they were paid by Selective ($169,019.00)
and the amount they claimed on their timely submitted Proof of Loss
($194,365.12).

FEMA acknowledges that a claim in the $25,346.12

amount can proceed against Selective, but they assert that there is no
concession that the claim has ultimate merit or that FEMA or Selective has
waived any defenses they may have.

The Special Master agrees with

FEMA on this issue. That claim should proceed independent of the review
of the waiver denial process that is being conducted here.
As far as the waiver portion of the review is concerned, it involves any
claim above the timely submitted Proof of Loss claim and is limited to
$21,849.39. FEMA argues that the record does not show that any claimed
“shortfall” above the $194,365.12 level has been shown.

As far as the

arguments concerning the Tanner report and the contention that preexisting structural damage should not be considered, FEMA notes that

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In their Oppositions at Document No. 677 at Pages 3 to 9, Group Five Plaintiffs have raised what
they term to be twenty-four “common issues” that the Court has previously considered or resolved
in consideration of prior groups. To the extent that these issues are not further cited in the
individual Plaintiffs’ discussion of their particular cases, the Special Master will not specifically
address these issues in this Report and Recommendation, but will incorporate and rely on the
Court’s prior rulings on these issues (see Documents 594, 596, 597 and 679) and the previouslyfiled Memorandum on Role of the Special Master and Report and Recommendation of the Special
Master on General Issues Raised by Plaintiffs and Defendants (Document 563).

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these were not presented in the waiver application and should not now be
allowed to be raised. This appears to be the case.
The Special Master concurs with FEMA that Plaintiffs should be allowed
to proceed with their timely filed POL up to the amount of $194,365.12,
but that FEMA has not conceded that any payment above $169,019.00
already paid should be paid. As to Plaintiffs other arguments, they have
not shown that FEMA’s denial of the waiver application was either
arbitrary or capricious or an abuse of discretion. The reasons given by
FEMA in Part III above for denial of the waiver application are more than
adequate to support its decision.

Plaintiffs however may pursue their

claim to receive compensation up to $194,365.12 including the sums
already received by Plaintiffs..

VI.

Recommendation of the Special Master
After a review and a consideration of the matter and the arguments

presented by the parties, it is the recommendation of the Special Master that the
Defendants’ Motion for Partial Summary Judgment affirming FEMA’s
determination of Plaintiff’s waiver application be granted but that Plaintiffs’ claim
arising out of the disallowance or partial disallowance of their timely filed Proof
of Loss shall proceed against Defendant Selective Insurance Company of the
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Southeast limited to the amount specified in the disallowed timely filed Proof of
Loss; and it is further recommended that Plaintiff’s Motion for Summary
Judgment be denied.

August 4 , 2011
Date

/S/
Dennis M. Sweeney
Special Master

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