KNUTSON v. SELECTIVE INSURANCE COMPANY et al

Filing 17

OPINION FILED. Signed by Judge Robert B. Kugler on 3/1/17. (js)

NOT FOR PUBLICATION

(Doc. No. 13)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
Dane KNUTSON,
:
:
Plaintiff,
:
Civil No. 16-306 (RBK/JS)
:
v.
:
Opinion
:
SELECTIVE INSURANCE
:
COMPANY, et al.,
:
:
Defendant(s). :
___________________________________ :
KUGLER, United States District Judge:
This matter comes before the Court on Plaintiff Dane Knutson’s (“Plaintiff”) Complaint
against Defendant Selective Insurance Company (“Defendant”) asserting breach of an insurance
contract. Currently before the Court is Defendant’s Motion for Summary Judgment (Doc. No.
13). For the reasons stated herein, Defendant’s Motion is GRANTED.
I.

BACKGROUND
A.

Facts

Plaintiff seeks to recover for damage to his property incurred as a result of Hurricane
Sandy. Def.’s Statement of Undisputed Material Facts (“Def.’s SMF”) ¶ 4. Plaintiff’s property
was insured under a Standard Flood Insurance Policy (“SFIP”) issued by Defendant under the
National Flood Insurance Program. Id. ¶ 2. On November 24, 2012, Defendant arranged for an
independent adjuster (“I.A.”) to inspect the property. Id. ¶ 5. Based on the I.A.’s reports,
Defendant paid a total of $142,776.83 for building coverage and $4,232.39 for contents coverage
between March 2013 and November 2014. See id. ¶¶ 6–17.

Plaintiff also hired a public adjuster, Gene Mehmel, to complete an estimate of building
damages. Id. ¶ 18. Mehmel submitted a proof of loss to Selective that estimated damages to total
$109,535.39, id. ¶ 18; the parties, however, dispute whether he ever sent a proof of loss that was
signed. Plaintiff contends that Mehmel initially transmitted an unsigned version to Defendant in
late April 2014, but subsequently obtained Plaintiff’s notarized signature on the document on
April 26, 2014 and resubmitted signed copies on two occasions. Pl.’s Opp’n, Mehmel Decl. ¶¶
7–8. While Mehmel has a copy of the signed proof of loss, he has no records that show he
submitted it to Defendant. Id. ¶¶ 8–9. Nor does he recall when he allegedly sent them. Def.’s
SMF ¶¶ 42–44. Defendant by contrast claims it never received a proof of loss that bore
Plaintiff’s signature prior to this suit. Def.’s SMF ¶ 20. Defendant’s Motion contains a copy of
Mehmel’s email on April 29, 2014, which attaches a proof of loss document that lacks a
signature. Id. ¶ 18.
B.

Procedural History

Plaintiff brought the present Complaint on January 15, 2016 for breach of the insurance
contract (Doc. No. 1). Defendant then filed the present Motion for Summary Judgment on
October 3, 2016 (Doc. No. 13).
II.

LEGAL STANDARD
The Court should grant a motion for summary judgment when the moving party “shows

that there is no genuine dispute as to any material fact and that the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). An issue is “material” to the dispute if it could alter the
outcome, and a dispute of a material fact is “genuine” if “a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (“Where the

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record taken as a whole could not lead a rational trier of fact to find for the non-moving party,
there is no ‘genuine issue for trial.’”) (quoting First Nat’l Bank of Az. v. Cities Serv. Co., 391
U.S. 253, 289 (1968)). In deciding whether there is any genuine issue for trial, the court is not to
weigh evidence or decide issues of fact. Anderson, 477 U.S. at 248. Because fact and credibility
determinations are for the jury, the non-moving party’s evidence is to be believed and
ambiguities construed in its favor. Id. at 255; Matsushita, 475 U.S. at 587.
Although the movant bears the burden of demonstrating that there is no genuine issue of
material fact, the non-movant likewise must present more than mere allegations or denials to
successfully oppose summary judgment. Anderson, 477 U.S. at 256. The non-moving party must
at least put forth probative evidence from which the jury might return a verdict in her favor. Id. at
257. Where the non-moving party 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,” the movant is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
Federal Rule of Civil Procedure 56(c)(4) states that “[a]n affidavit or declaration used to
support or oppose a motion [for summary judgment] must be made on personal knowledge, set
out facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.” See also Maldonado v. Ramirez, 75 F.2d 48, 51 (3d
Cir. 1985) (noting that an “affiant must ordinarily set forth facts, rather than opinions or
conclusions”); Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir. 2009)
(“[C]onclusory, self-serving affidavits are insufficient to withstand a motion for summary
judgment.”). Where the Declarant fails to provide a basis of knowledge for her statement, a
particular statement may be unsuitable for consideration upon a motion for summary judgment.

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Bowen v. U.S. Dep’t of Justice, 415 F. App’x 340, 345 n.4 (3d Cir. 2011); see also Olivares v.
United States, 447 F. App’x 347, 352 n.6 (3d Cir. 2011) (“The [Rule 56] requirement that
affidavits be made on personal knowledge is not satisfied by assertions made ‘on information
and belief.’” (citing Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir. 2004)).
III.

DISCUSSION
The SFIP is a creature of statute, codified at 44 C.F.R. pt. 61, app. A (2009). All disputes

arising out of the handling of any claim under a SFIP are governed by the National Flood
Insurance Act of 1968, 42 U.S.C. § 4001 et seq., the regulations promulgated thereunder by the
Federal Emergency Management Agency (“FEMA”), and the federal common law. 44 C.F.R. pt.
61, app. A(1), art. IX; Suopys v. Omaha Prop. & Cas., 404 F.3d 805, 807 (3d Cir. 2005). FEMA
authorizes private companies, known as “Write Your Own” (“WYO”) Companies, to issue SFIPs
and adjust SFIP claims. 44 C.F.R. §§ 61.13(f), 62.23; 42 U.S.C. § 4071(a)(1) (2003). WYO
Companies must handle SFIP claims by applying internal company standards in light of FEMA
guidance. Suopys, 404 F.3d at 807 (citing 44 C.F.R. § 62.23(i)(1)).
In order to qualify for benefits under the SFIP, an insured must comply with all of the
SFIP’s terms and conditions. 44 C.F.R. pt. 61, app. A(1), art. I. An insured must also perfect its
obligations under the SFIP as a prerequisite to bringing an action against a WYO Company to
contest a denial of coverage. 44 C.F.R. pt. 61, app. A(1), art. VII(R). The Third Circuit strictly
construes a claimant’s obligation to comply with SFIP provisions because any claim paid is a
direct charge to the United States Treasury. Suopys, 404 F.3d at 809. One requirement is to
submit “a proof of loss . . . signed and sworn to by you.” 44 C.F.R. pt. 61, app. A(1), art.
VII(J)(4). The Third Circuit has also reiterated that the SFIP “require[s] [an insured] to submit

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for approval a signed and sworn proof-of-loss statement by FEMA’s deadline.” Psychiatric Sols.,
Inc. v. Fid. Nat’l Prop. & Cas. Ins. Co., 652 F. App’x 122, 123–24 (3d Cir. 2016).
Plaintiff does not contest that he must submit a signed proof of loss to receive benefits
under the SFIP. Neither does he dispute that the proof of loss Mehmel emailed to Defendant on
April 29, 2014 contains no signature. Plaintiff instead asserts that there is a genuine dispute of
material fact in reliance on his public adjuster Mehmel’s declaration, which states that Mehmel
“strongly believes” he sent a signed version to Defendant at some point before this litigation
commenced. Mehmel, however, concedes that he has no documentation showing he ever
transmitted it and is also unable to specify when he supposedly did so. In light of these
deficiencies, the Court finds that Mehmel’s declaration does not create a disputed issue of fact.
Mehmel repeatedly claims he believes that he sent a signed version but fails to support that belief
with any facts — neither documentation nor details of when and via what medium he submitted
it. Conclusions formed via speculation, no matter how many times repeated, do not demonstrate
personal knowledge. Because Mehmel’s declaration contains no basis of knowledge for its
claims, it fails to raise a genuine dispute of material fact.
Plaintiff’s alternative arguments are utterly lacking. Plaintiff advances that the unsigned
proof of loss bears a title that states the proof of loss is “sworn” and Defendant never challenged
that description. The document’s title does not alter its lack of a signature, and it is not
Defendant’s responsibility to remind Plaintiff of the SFIP’s requirements. Suopys, 404 F.3d at
810 (“[T]he onus [is] on the insured to file the proof of loss within 60 days regardless of the
representations and assistance, or lack thereof, provided by the insurer or its adjuster.”). For the
same reason, the Court rejects Plaintiff’s argument that the unsigned version is identical in
content to the signed version. Plaintiff additionally urges the Court to relax the strict compliance

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requirement for SFIP in order to prevent an injustice, and cites a Ninth Circuit case for support.
Ninth Circuit law is not binding on this Court, and Third Circuit precedent clearly demands strict
compliance with the SFIP. Id. at 809. Accordingly, the Court grants summary judgment in favor
of Defendant.
IV.

CONCLUSION
For the reasons expressed above, Defendant’s Motion for Summary Judgment is

GRANTED.

Dated:

3/1/2017

s/ Robert B. Kugler
ROBERT B. KUGLER
United State District Judge

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