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Jackson v. Fidelity National Flood Insurance Co.

United States District Court, Eastern District of Louisiana

May 21, 2015

CHRISTINE JACKSON
v.
FIDELITY NATIONAL INSURANCE COMPANY

SECTION "L" (5)

ORDER & REASONS

Before this Court is Defendant’s Motion for Summary Judgment. (Rec. Doc. 33). Having read the parties’ briefs and reviewed the applicable law, the Court now issues this Order & Reasons.

I. UNDISPUTED FACTS

This case arises out of damage to Plaintiff’s property in La Place, Louisiana, which was allegedly caused by Hurricane Isaac. Defendant Fidelity National Insurance Company (“Fidelity”) provided flood coverage through the National Flood Insurance Program (“NFIP”) for the property in question. Fidelity issued a Standard Flood Insurance Policy (“SFIP”) to Plaintiff covering the building located on her property. (Rec. Doc. 33-2 at 2). The SFIP bears policy number 17115055577601 for a policy term of September 2, 2011 to September 2, 2012. (Rec. Doc. 33-2 at 2). Plaintiff’s coverage limits under the SFIP were $182, 000.00 for Coverage “A” (dwelling coverage), subject to a $2, 000 deductible, and $30, 000.00 for Coverage “B” (contents coverage), subject to a $1000.00 deductible. (Rec. Doc. 33-3 at 2).

Plaintiff submitted a flood claim to Fidelity stemming from flood damage to her house that occurred on August 29, 2012. Upon receipt of Plaintiff’s claim, Fidelity began the process of adjusting her claim and assigned Conrad Owens, an independent adjuster, to inspect Plaintiff’s property. (Rec. Doc. 33-4 at 2, 36-1 at 2). Owens assessed the flood damage and prepared a building estimate of $48, 834.14 with recoverable depreciation of $4, 969.78, for a total building claim of $53, 803.02. (Rec. Doc. 33-4 at 3).

On October 24, 2012, Plaintiff executed a Proof of Loss in the amount of $48, 834.15 for her building claim and signed a Replacement Cost Proof of Loss for her recoverable depreciation of $4, 969.78. (Rec. Doc. 33-2 at 26, 33-4 at 3). Plaintiff also signed a Proof of Loss for the contents claim for $26, 556.13. (Rec. Doc. 33-3 at 2, 33-4 at 3). Plaintiff also alleges that on October 24, 2012, Nathan Michelson notified Fidelity Flood Claims Department of Michaelson & Messinger Ins. Specialists, LLC’s (“M&M”) representation of Plaintiff and that a written estimate would be forthcoming. (Rec. Doc. 36-1 at 2).

Fidelity issued payments to Plaintiff under the SFIP Building Coverage in the amount of $48, 834.15 for the building claim and $4, 969.78 for the recoverable depreciation on November 9, 2012. (Rec. Doc. 33-4 at 3). Fidelity issued a check for the undisputed contents claim in the amount of $26, 555.13 on December 7, 2012. (Rec. Doc. 33-4 at 3).

On December 6, 2012, Dan Onofrey forwarded M&M’s estimate of Plaintiff’s damages, totaling $284, 332.91, [1] to Fidelity. (Rec. Doc. 36-3 at 22). Mr. Onofrey requested in his accompanying letter that Fidelity review the estimate and set up a supplemental claim. (Rec. Doc. 36-3 at 3). Plaintiff did not provide a supplemental Proof of Loss for this claim. Fidelity has no evidence of a waiver from the Federal Insurance Administrator for this particular claim and property, beyond the amounts already paid to Plaintiff. (Rec. Doc. 33-4 at 4). Plaintiff ultimately filed suit against Fidelity on August 28, 2013 for Fidelity’s failure to pay her actual losses. (Rec. Doc. 1).

II. PRESENT MOTION (Rec. Doc. 33)

Fidelity argues that this Court should grant Summary Judgment because “[t]he Fifth Circuit has consistently held that failure to submit a signed and sworn Proof of Loss bars recovery.” (Rec. Doc. 33-1 at 8). While Plaintiff submitted a signed and sworn Proof of Loss for the amounts that Fidelity paid, Fidelity maintains that Plaintiff’s failure to submit a signed and sworn Proof of Loss for the additional claims bars proceeding with this lawsuit. (Rec. Doc. 33-1 at 9). Moreover, Fidelity argues that Plaintiff did not secure a waiver for the Federal Insurance Amounts Administrator for her additional Proof of Loss. (Rec. Doc. 33-1 at 10).

Plaintiff opposes the motion. Plaintiff argues that pursuant to 44 C.F. R. § 61, app. (A)(1), art. VII (J)(9), an insurer can accept an adjuster’s report in lieu of a Proof of Loss. Plaintiff relies on Young v. Imperial Fire & Cas. Co. and argues that Plaintiff’s initial Proof of Loss, coupled with M&M’s estimate, satisfies the Proof of Loss requirements under Art. VII(J)(4). (Rec. Doc. 36 at 3) (citing No. 13-5246, 2014 WL 1456408 (E.D. La. April 14, 2014) (Lemmon, J.)).

Fidelity replies. Fidelity argues that while a WYO carrier may accept an adjuster’s report in lieu of a signed and sworn Proof of Loss, the insured must sign the report, and Plaintiff failed to sign the adjuster’s report. (Rec. Doc. 39 at 2). In response to Plaintiff’s reliance on Young, Fidelity argues that the instant case is distinguishable because the plaintiff in that case submitted a pre-suit proof of loss for amounts over and above what was paid by the carrier. (Rec. Doc. 39 at 2). Here, Fidelity maintains that Plaintiff never submitted a Proof of Loss for any amount beyond what she has been paid.

III. LAW AND ANALYSIS


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