United States District Court, E.D. Louisiana
ORDER AND REASONS
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
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.
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.
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.
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”). 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.
January 17, 2019, ABICF filed a motion for summary judgment.
See Rec. Doc. 13. On February 15, 2019, plaintiff
filed a response.See Rec. Doc. 19. On February 22,
2019, ABICF filed a reply. See Rec. Doc. 21.
Summary Judgment Standard
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).
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).
Defendant's Motion for Summary Judgment
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
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 ...