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Hymel v. Fidelity National Insurance Co.

United States District Court, E.D. Louisiana

March 6, 2015



CARL J. BARBIER, District Judge.

Before the Court is a Motion for Summary Judgment (Rec. Doc. 27) filed by Defendant, Fidelity National Insurance Company ("Fidelity"), and an Opposition (Rec. Doc. 28) by Plaintiff, Clyde Paul Hymel ("Plaintiff"). Having considered the motion, the parties' submissions, the record, and the applicable law, the Court finds, for the reasons expressed below, that the motion should be GRANTED.


Fidelity serves as a Write-Your-Own ("WYO") Program Carrier participating in the U.S. Government's National Flood Insurance Program ("NFIP"). The NFIP was established by the National Flood Insurance Act of 1968, 42 U.S.C. ยง 4001, and is administered by the Federal Emergency Management Agency ("FEMA"). Under the NFIP, Fidelity acts as a WYO Program Carrier pursuant to an Arrangement with FEMA ("the Arrangement"), in which Fidelity issues Standard Flood Insurance Policies ("SFIPs") to claimants insured under the NFIP.

Plaintiff's home is insured by Fidelity pursuant to the NFIP. Specifically, Fidelity issued an SFIP to Plaintiff which provided coverage for damage incurred by flooding for both Plaintiff's dwelling itself, as well as the contents of the dwelling. The terms of Plaintiff's SPIF require that in order to recover on a claim for flood damage, an insured must submit within sixty (60) days after the loss is incurred, a proof of loss supported by "specifications of damaged buildings and detailed repair estimates" (among other documentation requirements). Fidelity granted a blanket extension of this requirement for all claimants who sustained flood damage during Hurricane Isaac, allowing them to file documented proofs of losses within 240 days of the date the loss was incurred.

Plaintiff alleges that on or about August 29, 2012, as a result of Hurricane Isaac, he sustained serious damage to his home and its contents, which were covered by the insurance policy. Shortly thereafter, Plaintiff notified Fidelity of his intent to file an insurance claim. Fidelity then arranged for Travis Allman, an independent adjuster, to inspect Plaintiff's property and compile an estimate of damage. After an inspection of the property, Mr. Allman prepared a report which totaled $55, 616.76 in estimated damage to the main building, $1, 695.24 in estimated damage to the detached garage, and $36, 943.73 in estimated damage to the contents of the property, for a total of $94, 255.73 in damage. Plaintiff then executed and timely delivered to Fidelity a signed proof of loss in the amount of $94, 255.73. Fidelity did not dispute this amount of coverage and paid this amount to Plaintiff. Plaintiff does not dispute that he has received this payment.

After this payment was made, Plaintiff retained the services of a second adjuster from Michaelson and Messinger Insurance Specialists, LLC ("M&M") to compile an estimate. This estimate totaled damage in the amount of $290, 041.89. Plaintiff then filed a supplemental claim with Fidelity for payment of the additional damage detailed in the M&M report, which Fidelity had not covered in the original payment. Plaintiff alleges that in support of his claim for additional benefits, he submitted the estimate report compiled by M&M. Fidelity refused to make any payments beyond the amount they originally paid to Plaintiff.

Plaintiff then filed suit against Fidelity before this Court on August 13, 2013, alleging that Fidelity breached the insurance contract and acted in bad faith by refusing to tender the additional benefits. On October 17, 2013, this Court granted Fidelity's partial motion to dismiss and dismissed with prejudice Plaintiff's claims against Fidelity for attorney's fees and bad faith. Fidelity then filed the instant motion, seeking summary judgment in its favor and the dismissal of all of Plaintiff's remaining claims. Fidelity argues that because Plaintiff failed to satisfy the strict conditions of his SPIF, namely by failing to submit a signed proof of loss in support of his claim for additional benefits, Fidelity was not required, and in fact not permitted, to make payment on these additional benefits. Because of this failure, Fidelity argues that Plaintiff is procedurally barred from receiving payment on his claim for additional benefits.


Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no material issue as to any material fact and that the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56(c)); See also 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 refrains from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but a party cannot defeat summary judgment with conclusory allegations or unsubstantiated assertions. Little, 37 F.3d at 1075. A court ultimately must be satisfied that "a reasonable jury could not return a verdict for the nonmoving party." Delta, 530 F.3d at 399.

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, 1263-64 (5th Cir. 1991) (citation omitted). The nonmoving party can then defeat the motion by either countering with sufficient evidence of its own, 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 then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a material issue exists. See id. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a material issue for trial. See, e.g., id. at 325; Little, 37 F.3d at 1075.


Fidelity contends that it is entitled to summary judgment on Plaintiff's claims because Plaintiff has failed to comply with the stringent requirements of his insurance policy. "Federal law governs interpretation of NFIP polices." Kidd v. State Farm Fire & Cas. Co., 392 F.Appx. 241, 243 (5th Cir. 2010). Because payments on SFIPs ultimately come from the federal treasury, the Fifth Circuit has repeatedly recognized that conditions of SFIPs, such as the aforementioned condition, must be "strictly construed and enforced." Forman v. FEMA, 138 F.3d 543, 545 (5th Cir. 1998); Richardson v. Am. Bankers Ins. Co. of Fla., 279 F.Appx. 295, 298 (5th Cir. 2008) (citing Gowland v. Aetna, 143 F.3d 951, 954 (5th Cir. 1998)). Courts should not, even in "hard cases, " allow plaintiffs to circumvent these regulations, as providing for such "would disregard the duty of all courts to observe the conditions defined by Congress for charging the public treasury.'" Forman, 138 F.3d at 545 (quoting Office of Pers. Mgmt. v. Richmond, 110 S.Ct. 2465, 2469 (1990)). As such, a rule allowing for claimants to recover against Fidelity and ...

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