United States District Court, W.D. Louisiana, Lafayette Division
REBECCA F. DOHERTY, District Judge.
Currently pending before the Court is a motion for summary judgment [Doc. 15], filed by defendant American Strategic Insurance Corporation ("ASI"), whereby defendant seeks dismissal of all claims asserted against it by plaintiffs James and Victoria Miller. For the following reasons, the motion is GRANTED.
Plaintiffs brought this suit on September 13, 2013, seeking to recover benefits under a Standard Flood Insurance Policy ("SFIP") issued by ASI, under the provisions of the National Flood Insurance Act ("NFIA"). 42 U.S.C. §§ 4001, et seq. Jurisdiction over this matter exists pursuant to 28 U.S.C. § 1331. Borden v. Allstate Ins. Co., 589 F.3d 168, 172 (5th Cir. 2009)("an action for breach of an SFIP, a policy issued pursuant to the NFIP, satisfies § 1331 by raising a substantial question of federal law").
According to plaintiffs, on March 12, 2012, heavy rains and general flooding conditions in the Carencro, Louisiana area resulted in damage to their residence. [Doc. 1, ¶ 4] More specifically, plaintiffs allege "flood waters entered beneath the Plaintiffs' house and rose up to meet the structure, " but stopped "just before entering over the door threshold." [Id. at ¶ 5] Plaintiffs contacted their insurance agent who had placed the flood policy and were told they had not experienced a flood event. [Id.]
A few days after the flood, Mr. Oscar Scudder (a contractor who was performing flood remediation work on a neighbor's home) visited plaintiffs' residence at their request, and noted there were pools of water under the house and the house had a musky smell. [Doc. 28-12, p. 10] Either at that time, or a couple of months after the flood, Mr. Scudder recommended the plaintiffs perform some tear out work to properly assess the damage. [Id. at 10; Doc. 28-12, p. 19].
In June 2012, "Mrs. Miller stepped through the floor of the home...." [Doc. 1, ¶ 6] Mrs. Miller again had Mr. Scudder come to her home, and he advised her the damage to the floor was caused by the prior flooding. [Doc. 28-2, p. 21] Plaintiffs against contacted their insurance agent, who "advised foundation problems were not covered." [Doc. 1, ¶ 6]
Plaintiffs first contact with ASI regarding a potential flood loss occurred on July 27, 2012. [Doc. 15-2, ¶ 4] Shortly thereafter, ASI sent an adjustor who inspected the property and prepared a proof of loss for plaintiffs' signature, allowing for $528.00 for general post-flood cleaning. [Doc. 1, ¶ 8; see also Doc. 28-3, p. 20] Plaintiffs did not sign the proof of loss. [Doc. 28-2, p. 26; Doc. 15-9, p. 1] On September 13, 2012, ASI sent plaintiffs a letter stating plaintiffs' file was being closed for failure to submit a signed and sworn proof of loss. [Doc. 15-1, ¶ 5].
On October 31, 2012, plaintiffs submitted a letter to ASI, stating their disagreement with the adjustment of their claim, their opinion that the flooding had caused extensive water exposure under their home leading to the compromised flooring, and their opinion that the flooding had additionally caused their home to become contaminated with toxic mold. [Doc. 15-9] Plaintiffs requested ASI pay $92, 442.02 for their claim, and stated that the information provided in the letter "should represent our proof of loss." [Id.] ASI responded to plaintiffs' letter by correspondence dated November 28, 2012, and informed plaintiffs their claim would remain closed because ASI's engineer's report "indicate[d] that excessive moisture in crawlspace was a result of continuous condensation on the bottoms of the floors as there was no vapor barrier or insulation on the crawlspace, '" which was a condition specifically excluded under the policy. [Doc. 1, ¶ 11; Doc. 15-6, p. 5] Thereafter, plaintiffs filed this suit seeking damages due to ASI's "breach of the contract." [Doc. 1, p.6]
II. Summary Judgment Standard
"A party may move for summary judgment, identifying each claim or defense - or the part of each claim or defense - on which summary judgment is sought." Fed.R.Civ.P. 56(a). "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." Id.
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce ...