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LCP West Monroe, LLC v. United States

United States District Court, W.D. Louisiana, Monroe Division

July 12, 2018

LCP WEST MONROE, LLC
v.
UNITED STATES OF AMERICA, ET AL.

          TERRY A. DOUGHTY JUDGE

          RULING

          JERRY A. DOUGHTY UNITED STATES DISTRICT JUDGE

         This is a claim by Plaintiff LCP West Monroe, LLC (“LCP”) against the United States of America through the Federal Emergency Management Act (“FEMA”) for additional damages as a result of flooding. Pending before the Court is a Motion for Summary Judgment [Doc. No. 63] filed by FEMA. LCP opposes the motion.

         For the following reasons, FEMA's Motion for Summary Judgment is GRANTED.

         I. FACTS AND PROCEDURAL HISTORY

         FEMA is administrator of the United States Government's National Flood Insurance Program (“NFIP”), pursuant to the National Flood Insurance Act of 1968 (“NFIA”), as amended.

         LCP is the owner of the Shadow Glen Apartments, located at 1001 Glenwood Drive, West Monroe, Louisiana (the “Property”). The Property consists of seventeen buildings, three of which are insured by Selective.

         On March 9, 2016, the West Monroe area experienced flooding. Eleven buildings located on the Property sustained some flood damage (“the Flood Loss”). At the time of the Flood Loss, three of the buildings (L, J and H) were insured under FEMA-issued NFIP Standard Flood Insurance Policies - General Property Forms.[1] FEMA issued LCP a SFIP on Building L under policy number 4000617572 (“Building L SFIP”).[2] FEMA issued LCP a SFIP on Building J under policy number 4000617586 (“Building J SFIP”). FEMA issued LCP a SFIP on Building H under policy number 4000617603 (“Building H SFIP”).

         Following the March 9, 2016 flood, claims were submitted to FEMA under Buildings L, J, and H SFIPs. Upon receipt of the notices of loss, FEMA began the process of adjusting the claims.

         FEMA assigned an independent adjuster to the claims. Working with LCP, the adjuster determined that LCP was entitled to payments for flood-related damages under Coverage A.

         On June 15, 2016, LCP's representative executed sworn Proofs of Loss claiming net amounts of $245, 967.70 under Building H SFIP; $299, 261.19 under Building J SFIP; and $245, 941.93 under Building L SFIP.

         Proofs of loss must normally be submitted within 60 days, pursuant to 44 C.F.R., Pt. 61, App. A(2), Art. VII(J)(4). FEMA may authorize an extension to file claims outside the 60-day period. For Louisiana flood claims commencing on March 9, 2016, FEMA authorized an additional 60 days, giving insureds a total of 120 days after the date of loss to provide their signed and sworn Proof of Loss in support of amounts sought. In pertinent part, the extension provides:

. . . To ensure that NFIP policyholders have sufficient time to finalize their claims, pursuant to Paragraph D of the General Conditions section of the SFIPs and 44 C.F.R. §61.13(d), I hereby authorize an additional 60-day extension of the time period within which a policyholder must submit the requisite signed and sworn-to proof of loss with their NFIP insurer. With this extension, an NFIP policyholder will have a total of 120 days after the date of loss to provide the completed, signed, and sworn-to proof of loss to the insurer. This limited waiver and extension shall apply to all NFIP claims for the flood damage related to the Louisiana and Mississippi flooding occurring March 7, 2016 through March 19, 2016. This limited waiver and extension applies to SFIPs issued directly by FEMA or by private insurance companies participating in the NFIP's Write Your Own Program. . . . By granting this limited waiver and extension of the time period to send a proof of loss, FEMA does not hereby waive any other provisions of the SFIP, and all other terms and conditions of the SFIP remain in effect.

[Doc. No. 63, Exh. B, April 21, 2016 FEMA Extension Bulletin W-16028]. Therefore, LCP had until July 7, 2016, to submit sworn proofs of loss pursuant to the extended deadline.

         Although denying a duty to do so, LCP did not submit any further sworn proofs of loss by July 7, 2016, nor did it obtain any other waiver of the Proof of Loss deadline from FEMA.

         On July 29, 2016, FEMA issued payments to LCP for Building H in the amount of $240, 152.22 and for Building J in the amount of $290, 854.16. On or around October 10, 2016, FEMA issued a payment on the proof of loss for Building L in the amount of $245, 555.96. These payments reflect adjustments to the Proofs of Loss by FEMA based on items it determined at the time to be either non-compensable or items that should have been repaired, not replaced.

         LCP contends that it could not perform substantial work on the buildings until after it received the payments from FEMA, which occurred after the proof of loss deadline.

         LCP presented FEMA with additional Proofs of Loss executed on December 19, 2016, and mailed on December 23 2016, more than six months after the deadline. FEMA has not paid these claims.

         On May 7, 2018, counsel for LCP sent a request to FEMA to waive the proof of loss ...


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