Moffett et al v. Computer Sciences Corporation, et al

Filing 704

REPORT AND RECOMMENDATIONS of Special Master re 637 Supplemental MOTION for Summary Judgment for the claim of Mary Ann Marks 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 MARY ANN MARKS
This constitutes the Report and Recommendation to the Court concerning the
waiver claim of Mary Ann Marks 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 309 pages labeled FEMA-000001 to 000309.
I.

Background
Plaintiff's property located at 909 Oakdene Road in Baltimore, Maryland,

was insured through the National Flood Insurance Program (“NFIP”) by and

through a Standard Flood Insurance Policy (“SFIP”) issued by Allstate Insurance
Company (“Allstate”), in its capacity as a Write Your Own (“WYO”) Program
participating insurance company, pursuant to the National Flood Insurance Act of
1968, as amended (the “NFIA” – 42 U.S.C. §4001, et seq.). Id. Allstate issued
Plaintiff's SFIP Number 0803965433 with a coverage limit of $250,000.00 for her
building and $55,100.00 in contents coverage, each with a separate $1,000.00
deductible. See FEMA-000005 and FEMA-000075.
On September 19, 2003, Hurricane Isabel struck the Middle Atlantic
States, including Maryland, which caused flooding resulting in damage to
Plaintiff's home. See FEMA-000109. On September 20, 2003, Plaintiff reported
her loss to FEMA. Id. An independent adjuster was assigned to assist the insured
with the loss “as a courtesy only” per SFIP Article VII(J)(5), (7) and (8). Id.
Plaintiff submitted Proofs of Loss for, and was actually paid, $132,051.03
by Allstate for building damages and the full policy limits of $30,000.00 in
Increased Cost of Compliance (“ICC”) benefits. See Exhibit A-2 at Document
637-2 which is the Raske Dec., Doc. No. 396-2.1 Plaintiff’s waiver application
contends she was paid $159,126.85, but Allstate's records do not reflect this total.
Plaintiff submitted Proofs of Loss for, and was paid $31,218.68 for her
damaged contents by Allstate. Id. and FEMA-000005.
The total amount paid to Plaintiff by Allstate for damages to the building,
her contents, and Increased Costs of Compliance efforts was $193,269.71.
1

See

In her Declaration in this matter, Ms. Christian relied on the previously filed Declaration
of Jason Raske who was a Flood Field Manager for the Allstate National Catastrophe
Team and who conducted the review of this file for Allstate, the WYO carrier on this claim.
The Declaration was filed as Document No. 396-2 in this litigation.

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Raske Dec., Doc. No. 396-2.
Plaintiff did not submit a timely, signed and sworn Proof of Loss meeting
the requirements of Article VII(J) of her SFIP for any amounts greater than the
$193,269.71 that she was paid by and through Allstate, and Plaintiff has not
produced documentation to support a greater claim payment.
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, Plaintiff filed a document entitled
“PLAINTIFF MARY ANN MARKS’ INDIVIDUAL APPLICATION FOR
WAIVER OF PROOF OF LOSS REQUIREMENTS.” In this document, Plaintiff
indicates that she will furnish documents to support her request for a waiver at
some point in the future. See FEMA 000006.
losses were “in excess” of $195,000.00. Id.

Plaintiff stated that her total
FEMA denied the request for a

waiver of the proof of loss requirements in a letter dated July 31, 2008. See
FEMA-000055 to 000056.
III.

Reasons for Waiver Denial
The reasons for the denial of the Waiver Claim are found at ¶¶12-17 of the

Supplemental Declaration of Karen Christian for the Claim of Mary Ann Marks.
Document 637-2.It states:
On July 31, 2008, the Federal Insurance Administrator
denied Plaintiff’s request for a waiver of the proof of loss
requirements, and one of the reasons given by the Administrator
for the denial is the failure on the part of Plaintiff to include
documentation supporting her claim for additional benefits. See
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FEMA-000055 and FEMA-000056.
In Plaintiff’s shortfall
calculation it is also stated that Plaintiff (and her counsel) are still
awaiting documentation to prove her request. See FEMA-000015.
Furthermore, based upon the waiver request submitted, it is
not possible to determine what amounts are being sought by
Plaintiff. Nowhere does Plaintiff specifically state the total dollar
amount expended in repairing the structure. Instead, Plaintiff
states that it was “in excess” of $195,000.00. See FEMA-000005.
In this waiver application, Plaintiff asserts she is owed an
additional $4,873.15 under her building coverage for the total
repair costs, but unexplainably, Plaintiff also asserts on that same
page of her waiver request that the building shortfall is $8,086.00.
Id. Finally, Plaintiff asserts she is owed an additional $22,882.00
for damaged contents in her home. Id.
When reviewing Plaintiffs' waiver application, the
Administrator evaluated the facts and circumstances relating to the
request. See FEMA-000055 and FEMA-000056. 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
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 the following :
. . . you have not demonstrated additional covered
damage exists for which you have not been paid.
Specifically, you claim your actual damages for
personal property were greater than your policy
limits and exceeded the amount paid by your Write
Your Own company, Allstate Insurance (Allstate).
You also received the maximum amount payable
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under the Increased Cost of Compliance coverage
from Allstate. To support the amount of your
supplemental claim, you provided calculations of
the difference between your expenditures and
amount paid. No verifiable documentation was
submitted to substantiate the additional claimed
damages. Your claim was originally reviewed by an
independent adjuster and subsequently reviewed by
the Hurricane Isabel Task Force. All reviews of
your claim concluded the carrier’s evaluation was
accurate.
Further, your waiver request 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.

Plaintiff failed to demonstrate she met any of the
criteria used to determine whether to grant a waiver.
First, she failed to demonstrate any additional damages she sought
were actually covered by her SFIP. Second, she did not submit any
documentation of uncompensated damages caused directly by
flooding.
Accordingly, after another comprehensive review of the
claim, FEMA determined no further compensation was warranted.
Id. Plaintiff's waiver application was denied for a multitude of
reasons, but primarily because she failed to document any physical
loss by or from flood covered under her SFIP for which she did not
receive full compensation.
IV.

Plaintiffs’ Assertions

In Plaintiff’s Opposition, Document 678, there is no argument made about
why Plaintiff Mary Ann Marks’s claim for waiver should have been
granted and no discussion of her particular claim and its circumstances is

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included. Plaintiff does ask the court to grant her summary judgment in
the amount of $27,775.15. Id at page 50.

V.

Special Master’s Analysis 2

FEMA in its Reply, Document 688 at pages 7 to 8, summarizes the status
of this claim:
Mary Ann Marks ("Plaintiff") is mentioned in the introductory paragraph
and in the conclusion of the Opposition filed on behalf of the Group Five
Plaintiffs. She simply demands FEMA compensate her $27,775.15.
Plaintiff provides no argument in support of her claim and by silence
concedes FEMA's determination on her waiver application was not
arbitrary, capricious or contrary to law.
Plaintiff failed to submit
documents to support her waiver application and stated she was
". . .currently gathering documentation for costs and intends to submit in
due course." See FEMA-000005. As this Court recently noted there is no
reason why a Plaintiff should not have been prepared to submit a fully
articulated claim to FEMA in a waiver application. See Memorandum
Opinion of July 1, 2011 at 6. Plaintiff failed to prosecute her claim for a
long time and dismissal is clearly warranted.
FEMA summary is correct and in the Special Master’s view Plaintiff has
shown no basis for the grant of her motion for summary judgment or
denial of FEMA’s Supplemental Motion for Summary Judgment. Plaintiff

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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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has had years to document her claim and has simply failed to do so. There
is no indication of arbitrary or capricious action in denying the waiver
claim, nor is there any abuse of discretion shown.

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; 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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