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Westmoreland v. Fidelity National Indemnity Insurance Co.

United States District Court, M.D. Louisiana

May 29, 2015

JOYCE WESTMORELAND
v.
FIDELITY NATIONAL INDEMNITY INSURANCE COMPANY and COLONIAL CLAIMS CORPORATION

RULING & ORDER

JOHN W. deGRAVELLES, District Judge.

Before the Court is the Partial Motion for Summary Judgment filed by Defendant, Wright National Flood Insurance Company f/k/a Fidelity National Indemnity Insurance Company ("Wright"). (Doc. 36). Plaintiff, Joyce Westmoreland ("Westmoreland"), opposes the motion (Doc. 42), and Defendant has filed a Reply Memorandum. (Doc. 45). The Court has carefully reviewed the submissions of the parties and the relevant law. For the reasons which follow, the motion is GRANTED in part and DENIED in part.

I. BACKGROUND FACTS

This action arises out of a flood insurance claim made by Plaintiff, Joyce Westmoreland, for damage to her property located at 20406 Fairway Drive, Springfield, Louisiana (hereinafter referred to as "the Property"), sustained during Hurricane Isaac on August 29, 2012. (Doc. 1). Westmoreland was the holder of Standard Flood Insurance Policy ("SFIP") No. 171150610986 which was issued by Wright, [1] a Write-Your-Own ("WYO") carrier participating in the National Flood Insurance Program. (Doc. 36-1, pp. 1, 4). The SFIP was effective from December 4, 2011, through December 4, 2012, and had a coverage limit for building structural damages in the amount of $200, 000, subject to a deductible of $1, 000. ( Id. at p. 4).

At the outset, the Court notes that the parties are in agreement as to the majority of the material facts of the case. In September of 2008, the Property sustained flood damages when Hurricane Ike made landfall. (Doc. 36-1, pp. 3-4). The storm caused the Property to receive three inches of interior flood water and fifteen inches of exterior flood water. ( Id. at p. 4). At the time of this flood loss, Carl Lind was the principal owner of the Property. (Doc. 36-2, p. 6). Mr. Lind was the named insured on SFIP No. 177700276306, which had been issued to him by Wright. ( Id. ). Mr. Lind made a flood loss claim through Wright and received payment under his SFIP in the amount of $21, 151.81. ( Id. ).

In 2010, Westmoreland purchased the Property from the Linds. (Doc. 1, ΒΆ 10; see also Doc. 42-6, p. 6). On August 29, 2012, Hurricane Isaac made landfall and flooded Westmoreland's property. (Doc. 42, p. 2). After the storm, Plaintiff notified Defendant of the flood loss, and the claims adjustment process began. (Doc. 36-1, p. 4). Wright engaged independent adjuster, Bruce Huffman ("Huffman"), through Colonial Claims Corporation, [2] to adjust Plaintiff's claim. ( Id. ). Following an inspection of the Property, Huffman determined that the Property had received approximately twenty-two inches of water on the interior and thirty-two inches of water on the exterior of the building. ( Id. ). The interior flood waters remained inside the building for approximately five days. (Doc. 42, p. 3).

Huffman determined that all damages observed during his inspection were caused by flood. (Doc. 36-6, p. 1). However, Huffman indicated that some of the damage appeared to have been damage from a prior flood loss; therefore, evidence of the repair of the 2008 damages was requested from Westmoreland. (Doc. 36-1, pp. 4-5). Because no evidence was provided to Huffman, his estimate included only those "items that were not paid in [the] prior [claim] or items I could tell by pictures and my inspection hat [sic] they had been repaired." (Doc. 36-6, p. 2). Huffman's estimate totaled $54, 892.90 actual cash value. (Doc. 36-4, p. 18). Apparently based on this estimate, Wright issued a payment for structural damages in the amount of $54, 892.90 to Westmoreland.[3] (Doc. 45, p. 5).

On December 20, 2012, Wright issued a Partial Denial of Claim letter to Westmoreland through her attorney. (Doc. 36-5, p. 3). Westmoreland appealed the denial to FEMA, but Wright's decision was upheld. (Doc. 36-7). Thus, on August 27, 2013, Westmoreland filed the instant suit in this Court. (Doc. 1).

II. THE PRESENT MOTION

Wright moves for summary judgment on two separate issues. First, Wright contends that Westmoreland is not entitled to "recover for items of damage that were previously damaged by a prior flood loss, however, not repaired/replaced after the prior loss." (Doc. 36-1, p. 2). Specifically, Wright argues that Article VII(K)(2)(e) of the SFIP requires Westmoreland to produce evidence to show that any items damaged in a prior flood loss for which payment under the SFIP was issued were actually repaired before the current flood loss occurred. ( Id. at p. 5). In opposition, Westmoreland argues that she is entitled to recover all damages from the 2012 flood loss regardless of whether or not the prior damages were repaired. (Doc. 42, p. 8). Wright responds that based on the SFIP and provisions of FEMA's Adjuster Claims Manual, unrepaired prior damages cannot be paid a second time. (Doc. 45, p. 4). Therefore, Wright argues, it is entitled to summary judgment because Westmoreland cannot meet her burden of proving the repairs were made. (Doc. 45).

Second, Wright asserts that because the Property was not Westmoreland's principal residence, any recovery allowed is subject to valuation by Actual Cash Value ("ACV") under Article VII(V) of the SFIP. (Doc. 36-1, p. 8). In her opposition, Westmoreland concedes that the Property was not her principal residence, and, therefore, her recovery is limited to the ACV. (Doc. 42, p. 10).

III. LAW & ANALYSIS

A. Summary Judgment Standard

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). If the mover bears his burden of showing that there is no genuine issue of fact, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587, 106 S.Ct. 1348 (1986) (internal citations omitted). The non-mover's burden is not satisfied by "conclusory allegations, by unsubstantiated assertions, or by only a scintilla' of evidence." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (citations and internal ...


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