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Moran v. American Bankers Insurance Company of Florida

United States District Court, E.D. Louisiana

July 17, 2019

FAUSTO MORAN
v.
AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA

         SECTION: “B” (1)

          ORDER AND REASONS

         Before the Court are defendant American Bankers Insurance Company of Florida's (“ABICF”) motion for summary judgment (Rec. Doc. 13), plaintiff Fausto Moran's opposition (Rec. Doc. 19), and ABICF's reply (Rec. Doc. 21). For the reasons discussed below, IT IS ORDERED that the motion for summary judgment is GRANTED. FACTS AND PROCEDURAL HISTORY

         ABICF, as a Write Your Own (“WYO”) company, issued a standard flood insurance policy (“SFIP”) to plaintiff pursuant to the National Flood Insurance Program (“NFIP”). See Rec. Doc. 13-1 at 4. The SFIP extended for the period of March 3, 2017, to March 3, 2018, and covered plaintiff's property located at 2638 Saint Ann Street, New Orleans, Louisiana, 70119 (“the Property”). See id. The SFIP required plaintiff to submit to ABICF a timely, signed, and sworn proof of loss, stating the total amount being claimed, along with an inventory of damaged property showing the quantity, description, actual cash value, and amount of loss, accompanied by all bills, receipts, and related documents within 60 days of any loss to the Property. See Rec. Doc. 13-3 at 2.

         On August 5, 2017, the Property was damaged during a flood. See id. Accordingly, plaintiff's deadline for submitting his proof of loss was October 4, 2017. See Rec. Doc. 13-1 at 4. Soon after the Property was damaged, plaintiff submitted a claim to ABICF. See Rec. Doc. 13-3 at 2. On August 11, 2017, ABICF sent an adjuster to conduct an inspection of the Property. See Rec. Doc. 19 at 1. On August 14, 2017, ABICF made an initial payment on plaintiff's claim. See id. On August 17, 2017, plaintiff purchased two new water heaters for the Property. See id. On August 19, 2017, the adjuster completed his estimate. See id. Plaintiff immediately noticed that the estimate alleged that the two water heaters were not covered by the NFIP policy. See id. at 2.

         American Bankers denied plaintiff's full claim for coverage of damages of the Property. See Rec. Doc. 13-3 at 2. Through counsel, plaintiff advised ABICF that he disputed the completeness of the estimate, and, according to plaintiff, the parties continued to negotiate to compensate plaintiff for the losses he sustained. See Rec. Doc. 19 at 2. Between November 2017 and August 2018, there were at least three occasions in which the parties exchanged correspondences concerning plaintiff's losses. See id. at 2-3.

         On August 3, 2018, plaintiff filed a petition for breach of contract and damages alleging that defendant ABICF improperly denied his claim, despite his submission of several proofs of loss through independent adjuster defendant Pilot Flood Management (“Pilot”).[1] See Rec. Doc. 13-1 at 2. ABICF denies that plaintiff submitted any proofs of loss and is entitled to any requested relief. See id. at 4.

         On January 17, 2019, ABICF filed a motion for summary judgment. See Rec. Doc. 13. On February 15, 2019, plaintiff filed a response.[2]See Rec. Doc. 19. On February 22, 2019, ABICF filed a reply. See Rec. Doc. 21.

         LAW AND FINDINGS

         A. Summary Judgment Standard

         Under Federal Rule of Civil Procedure 56, summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). See also TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists if the evidence would allow a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248. The court should view all facts and evidence in the light most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson Bros. Inc., 453 F.3d 283, 285 (5th Cir. 2006). Mere conclusory allegations are insufficient to defeat summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).

         The movant must point to “portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. If and when the movant carries this burden, the non-movant must then go beyond the pleadings and present other evidence to establish a genuine issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). However, “where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). “This court will not assume in the absence of any proof that the nonmoving party could or would prove the necessary facts, and will grant summary judgment in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the [non-movant].” McCarty v. Hillstone Rest. Grp., 864 F.3d 354, 357 (5th Cir. 2017).

         B. Defendant's Motion for Summary Judgment

         In 1968, pursuant to the National Flood Insurance Act of 1968, Congress created the NFIP. See Gowland v. Aetna, 143 F.3d 951, 953 (5th Cir. 1998). This program makes flood insurance available with large-scale participation by the federal government and some participation by the private insurance industry. See Thalheim v. Allstate Ins. Co., 2003 U.S. Dist. LEXIS 12417, at *4 (E.D. La. 2003). The federal government's participation allows for individuals to obtain flood insurance coverage at or below actuarial rates. See Gowland, 143 F.3d at 953; see also Ferraro v. Liberty Mut. Fire Ins. Co., 796 F.3d 529, 531 (5th Cir. 2015)(“Congress created the NFIP to provide flood-insurance coverage at affordable rates.”).

         The NFIP is operated by the Federal Emergency Management Agency (“FEMA”). See id. FEMA can issue flood polices directly or through private insurers known as WYO companies. See id. The terms and conditions of all federally issued polices, whether directly or indirectly issued, are fixed by FEMA. See id.; see also Thalheim, 2003 U.S. Dist. LEXIS 12417, at ...


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