MARCIA MORALES HOWARD, District Judge.
This case is a breach of contract action brought by property owners Timothy and Deborah Slater ("Slaters" or "Plaintiffs") against insurer Hartford Insurance Company of the Midwest ("Hartford") for failure to pay under the terms of a flood insurance policy. The case is before the Court on Plaintiffs' Motion for Partial Summary Judgment and Memorandum of Law (Doc. 28; Plaintiffs' Motion), and Defendant,
This action arises out of a flood insurance policy issued pursuant to the National Flood Insurance Program. ("NFIP"). See 42 U.S.C. § 4001 et seq. The NFIP is a federally supervised and guaranteed insurance program administered by the Federal Emergency Management Agency ("FEMA"), pursuant to the National Flood Insurance Act of 1968, as amended, id. ("NFIA"), and corresponding regulations.
Hartford is a WYO Program carrier participating in the NFIP. (Doc. 36-1; Holmes Aff. ¶¶ 4, 23). As such, the flood insurance policies issued by Hartford are SFIPs, issued pursuant to the NFIA. Holmes Aff. ¶ 4. Thus, Hartford "appears in this action in a fiduciary capacity as the fiscal agent of the United States." Flamingo S. Beach, 492 Fed.Appx. at 18 (citing 44 C.F.R. § 62.23(f-g)); see Shuford, 508 F.3d at 1339, 1343 (citing 42 U.S.C. § 4071(a)(1)).
On September 30, 2011, the Plaintiffs purchased flood insurance in the form of a SFIP from Hartford for their home in Neptune Beach, Florida. (Doc. 38-1); see also Holmes Aff. ¶ 3.
44 C.F.R. Pt. 61, App. A(1), art. VII.J.4. The SFIP also provides that
Id. art. VII.J.7. Additionally, the SFIP provides that
Id. art. VII.D; see also Shuford, 508 F.3d at 1339; Ambassador Beach Condo. Ass'n, Inc. v. Omaha Prop. & Cas. Ins. Co., 152 F.Supp.2d 1315, 1316 (N.D.Fla.2001); 44 C.F.R. § 61.13(d) ("no provision of the said documents shall be altered, varied, or waived other than by the express written consent of the Federal Insurance Administrator").
On June 26, 2012, while the policy was in effect, the Slaters' home was damaged by a flood caused by Tropical Storm Debby. (Doc. 1; Complaint ¶ 6; (Doc. 5; Answer ¶ 6));
Hartford assigned the Slaters' claim to an independent adjusting company on June 27, 2012. Holmes Aff. ¶ 14. The adjuster inspected the property on July 1, 2012, and prepared a Preliminary Report, dated August 23, 2010. Holmes Aff. ¶¶ 15, 16; Preliminary Report. The following information was recorded in the Preliminary Report:
Preliminary Report; see also Holmes Aff. ¶ 16. The adjustor prepared a Flood Damage Closing Report, also dated August 23, 2012. (Doc. 36-4; Closing Report); Holmes Aff. ¶ 17. In it, he "documented a 5-7" outside water line and a 1 + "inside water line." Closing Report. The adjuster determined that
Id. He also reported that the Slaters had not provided a list of damaged personal property, so no losses were attributable to personal property, and further noted that other items in the home did not appear to be damaged. Id. The adjuster recommended that Hartford "make payment to
On August 27, 2012, the Slaters submitted their first Proof of Loss to Hartford. The 08/27/12 First Proof of Loss has typewritten damages figures, along with handwritten numbers. 08/27/12 First Proof of Loss. The typewritten damages figures conclude with "Net Amount Claimed under the numbered policy is (Pending Your Flood Carrier's Final Approval) $13,992.72." Id. The handwritten notations appear to say: "Microtech $20,164.31"; "[contractor] Shaycore $103,184.20;" and "Out of Pocket $2500.00." Also handwritten is "Policy limits $250,000/100,000." Id. The handwritten numbers add up to $125,848.51. See Plaintiffs' Response at 3. The 08/27/12 First Proof of Loss is on a form bearing the letterhead of the United States Department of Homeland Security, FEMA, and the National Flood Insurance Program, and is signed and sworn to by the Slaters as of August 27, 2012. 08/27/12 First Proof of Loss.
On August 28, 2012, the Slaters submitted a second Proof of Loss form. 08/28/12 Second Proof of Loss; Holmes Aff. ¶ 25.
Hartford issued a $15,567.63 payment for building damage to the Slaters pursuant to the SFIP, on September 5, 2012. Holmes Aff. ¶ 18; (Doc. 36-5; 09/05/12 Check). On September 12, 2012, Hartford sent a letter to the Slaters denying the Slaters' request for additional funds. (Doc. 36-11; 09/12/12 Hartford Letter); Holmes' Aff. ¶ 29. Hartford wrote:
09/12/12 Hartford Letter. The letter lists the Date of Loss as being June 26, 2012. Id. Additionally, the letter advised the Slaters of their right to an administrative appeal of Hartford's decision to FEMA. Id.
On February 19, 2013, FEMA responded to the Slaters' administrative appeal, which "questioned the damage assessment and final loss adjustment," and sought "payment of the supplemental claim for building components, mitigation/remediation services, and incidental expenses totaling $126,293.38." (Doc. 36-6; 02/19/13 FEMA Letter).
On March 15, 2013, an e-mail was sent from Kelly Bauer, identified as "SHR.NFS.ALL.FEMAWAIVERS" to "fema-flaclaims@dhs.gov" regarding the Slaters' "supplemental" claim. (Doc. 36-7; 03/15/13 Request for Waiver); Holmes Aff. ¶ 21.
Id. As to the requested waiver, the Request states:
Id. The Request lists the "AVC Payable: $29,717.26/Current Amt Requested $16,567.63/$15,567.63 Previous Claim Pmt(s)" for the building and "ACV Payable: $71.03/Current Amt Requested $0/Previous Claim Pmt(s)" for the contents. Id.
That following Monday, March 18, 2013, FEMA responded that as long as the insured has provided "the actual costs and not estimates," the Request for Waiver was approved. (Doc. 36-8; Waiver). Specifically, FEMA wrote:
Waiver. On March 23, 2013, Hartford issued a second check to the Slaters in the amount of $29,717.26 for building damage (for a total of $45,284.89 for building damage), and $71.03 for contents damage. Holmes Aff. ¶ 22; (Doc. 36-9; 03/23/13 Check).
The Slaters filed this lawsuit on March 29, 2013. See Complaint. Plaintiffs allege in Count I of their Complaint that the cost of repairing the damage to their house caused by the flooding from Tropical Storm Debby exceeds $125,000.00, and that Hartford has breached its obligations under the SFIP by failing to pay the amount properly owed to them under the Policy. Id.
Under Rule 56, Federal Rules of Civil Procedure (Rule(s)), "[t]he 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." Rule 56(a). The record to be considered on a motion for summary judgment may include "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Rule 56(c)(1)(A).
The party seeking summary judgment bears the initial burden of demonstrating to the court, by reference to the record, that there are no genuine issues of material fact to be determined at trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). "When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir.1995) (internal citations and quotation marks omitted). Substantive law determines the materiality of facts, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In determining whether summary judgment is appropriate, a court "must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.1995) (citing Dibrell Bros. Int'l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir.1994)). At the summary judgment stage, the Court's function is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505.
Hartford contends that the Slaters are not entitled to any additional recovery under their SFIP because they "failed to
A Proof of Loss is a statement by the insured informing the insurer — either FEMA or a WYO carrier — of the amount the insured is claiming under the policy. See 44 C.F.R. Pt. 61, App. A(1), art. VII.J.4. The statement must be signed and sworn to by the insured, and provide the insurer with nine specified pieces of information, including the specifications of damaged buildings, detailed repair estimates, and a brief explanation of how the loss happened. See id. at art. VII.J.4.a.-i. "[S]trict compliance with the provisions of federal flood insurance policies is required because payments are drawn from the federal treasury." Shuford, 508 F.3d at 1343; see also Sanz v. U.S. Sec. Ins. Co., 328 F.3d 1314, 1318 (11th Cir.2003) ("the insured must adhere strictly" to the requirements of an SFIP "before any monetary claim can be awarded against the government"); Richardson v. Am. Bankers Ins. Co., 279 Fed.Appx. 295, 298 (5th Cir.2008) (insured must "show prior compliance with all of the policy's requirements, including the [proof of loss] requirement"). As such, failure to file a timely Proof of Loss prohibits an insured from recovery. Sanz, 328 F.3d at 1317-18 (citing Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85, 68 S.Ct. 1, 92 L.Ed. 10 (1947)). However, the Proof of Loss requirement may be waived, but to be effective, the waiver must be made by the Federal Insurance Administrator in writing. See Sanz, 328 F.3d at 1318-19; see also; 44 C.F.R. Pt. 61, App. A(1), art. VII.D; 44 C.F.R. § 61.13(d).
Plaintiffs argue that their submission of the 08/27/12 First Proof of Loss, with the handwritten entry reflecting "the same dollar amounts" as that presented in the 08/28/12 Second Proof of Loss, "adequately presents all of the Slaters' losses," and thus, creates "a genuine issue of material fact regarding whether the second proof of loss was even necessary, because a reasonable jury could find that the first document put Hartford on notice about all of the Slaters' damages." Plaintiffs' Response at 5-6. They note that the "package of information sent the following day" in the 08/28/12 Second Proof of Loss, included contractor estimates to support the numbers handwritten by Timothy Slater on the 08/27/12 First Proof of Loss. Id. Hartford did not mention the 08/27/12 First Proof of Loss in its papers, arguing only that the 08/28/12 Second Proof of Loss was untimely.
The SFIP requires that a claimant provide the insurer with a Proof of Loss "within 60 days after the loss." 44 C.F.R. Pt. 61, App. A(1), art. VII.J.4 and 7. Neither party cited to any legal authority providing guidance on the computation of the SFIP 60-day Proof of Loss requirement, and the Court was unable to locate any. However, Plaintiffs cite to the decision in Smith v. Nat'l Flood Ins. Program of FEMA, 156 F.Supp.2d 520 (E.D.Pa. 2001), in which the court applied the method of computation provided by Rule 6(a), Federal Rules of Civil Procedure, for computing the NFIA deadline for a claimant to bring suit in federal court ("`within one year after the date of mailing of notice of disallowance or partial disallowance by the Director'"). Smith, 156 F.Supp.2d at 522-23 (quoting 42 U.S.C. § 4072). In doing so, the court observed that the Third Circuit Court of Appeals had applied the Rule 6(a) method of computation to determine the end of the statutory limitations period applicable to the Federal Tort Claims Act, which provides that an action must be brought "within two years after such claim accrues," 28 U.S.C. § 2401(b), and found that "the same reasons" apply to the one-year statute of limitations computation in the NFIA. Id. at 523 (citing Frey v. Woodard, 748 F.2d 173, 175 (3d Cir.1984)). Thus, the Smith court adopted the Rule 6 time computation methodology for ascertaining the end point of the NFIA one-year statute of limitations that "exclude[s] the day of the event that triggers the period," and includes the last day of the period unless the last day is a Saturday, Sunday, or legal holiday, in which case "the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday." Rule 6(a)(1).
The Eleventh Circuit has observed that it has "long recognized as a general policy a legislative intent to apply Rule 6(a) to all federal statutes enacted or amended after the adoption of Rule 6(a).... [and that] [t]his policy generally prevails unless the statute in question itself reflects a contrary intent." Am. Canoe Ass'n, Inc. v. City of Attalla, 363 F.3d 1085, 1086 (11th Cir.2004) (citations omitted) (applying Rule 6 computational analysis to Clean Water Act); see also Maahs v. United States, 840 F.2d 863, 865-66 (11th Cir.1988) (Rule 6 computation of time applied to FTCA two-year requirement for claim to be brought such that the counting begins on the day after the cause of action arose and ends on the next day that is not
The next issue might well be whether the 08/27/12 First Proof of Loss, standing alone, constitutes an adequate Proof of Loss submitted in compliance with the requirements of the SFIP. See 44 C.F.R. Pt. 61, App. A(1), art. VII.J.1-9. However, neither party has made this assertion. Instead, Plaintiffs contend that the 08/28/12 Second Proof of Loss, when considered with the 08/27/12 First Proof of Loss, satisfy the Proof of Loss requirement.
Although the SFIP makes no reference to either permitting or prohibiting supplemental claims, it does require that a Proof of Loss must be filed within 60 days. As such, some courts have stated that a supplemental proof of loss must also be submitted within 60 days of the loss. See Ambassador Beach Condo. Ass'n, 152 F.Supp.2d at 1316-17. Additionally, courts have held that after the 60 day period expires, "the insured may not seek additional damages not reflected in the Proof of Loss." Oaks v. Allstate Ins. Co., No. 05-191-REW, 2006 WL 3328179, at *5 (E.D.Ky. Nov. 14, 2006) ("Plaintiff may not avoid enforcement of the proof of loss requirement by `supplementing' or `amending' his original statement after the 60 day period expires"); Smith-Pierre v. Fid. Nat'l Indem. Ins. Co., No. 11-60298-CIV, 2011 WL 3924178, at *3 (S.D.Fla. Sept. 7, 2011) ("Plaintiff's original proof of loss cannot fulfill his obligation to submit a proof of loss for amounts not covered by the original proof of loss"); see also Howell v. State Farm Ins. Co., 540 F.Supp.2d 621, 627 (D.Md.2008) (plaintiffs "are limited to benefits they claimed in timely proofs of loss, even if they `consistently disputed the amounts [that] the defendants should pay under the policy'" (citation omitted)). Notably,
There is authority, however, for the proposition that a supplemental proof of loss that is submitted out of time, may be considered along with a timely proof of loss, if the supplemental submission makes a claim that is identical to that submitted in the timely proof of loss. For example, in Stogner v. Allstate Ins. Co., No. 09-3037, 2010 WL 148291, at *1 (E.D.La. Jan. 11, 2010), the plaintiff suffered flood losses in 2005 and 2008. 2010 WL 148291, at *1. When the plaintiff submitted a proof of loss for the 2008 incident, the insurer disputed the documentation regarding whether the 2005 damage had been repaired and paid only $6,171. The Plaintiff filed suit. The court recognized that while "it is clear that supplementary proofs of loss are required when a claimant requests more in the supplementary claim than in the original claim ... if the same amount is claimed, and only the decision is disputed, additional proofs of loss may not be necessary." Id. at *4 (emphasis added). The Stogner court denied the insurer's motion for summary judgment based upon the proof of loss because it was not apparent from the record whether the lawsuit was for "the same amount" claimed in the 2008 proof of loss (but not paid in full), or if it was for more, which would require another proof of loss. Id.
Similarly, in Young v. Imperial Fire & Cas. Ins. Co., No. 13-5246, 2014 WL 1456408 (E.D.La. April 15, 2014), the insured submitted three signed and sworn Proof of Loss statements for building damages, plus a detailed estimate of damages from a public adjuster to a WYO insurer. 2014 WL 1456408, at *1, *3. In the initial timely Proof of Loss, plaintiffs made a claim for $175,000, which was the policy limit of building coverage minus the deductible. Plaintiffs also stated in the initial Proof of Loss that the "actual cash value, full cost of replacement or repair and applicable depreciation" was "`undetermined.'" Id. at *1. The damages report, which estimated the total amount of damages to be $260,635.83, was submitted after the 60-day Proof of Loss period had expired. Id. The accompanying cover letter stated that the report "was an estimate of damages to supplement" the insured's claim. Id. When the SFIP insurer declined to pay the policy limits for building losses, the insureds filed suit against the insurer. The insurer argued that it was entitled to summary judgment because the plaintiff insureds did not submit a timely Proof of Loss for building damages that complies with the requirements of the SFIP. Id. The insurer argued that the insured's submissions were inadequate because the detailed estimate was not submitted with a signed Proof of Loss form, and the estimate was not separately signed and sworn by the insureds. Additionally, the WYO insurer argued that the claimed amount of $175,000 and the estimated
Here, the 08/27/12 First Proof of Loss and the 08/28/12 Second Proof of Loss, when construed in favor of the Slaters, both refer to more than $125,000.00 in property damages. Hartford does not argue that the 08/27/12 First Proof of Loss Form was either untimely or deficient. Indeed, Hartford does not even discuss the 08/27/12 First Proof of Loss Form. Unlike the claimant in Sun Ray Village, who failed to submit any support for or documentation to support its claimed loss under the SFIP, 546 F.Supp.2d at 1286-87, 1289, 1292, the Slaters submitted a detailed Water Damage Report with their 08/28/12 Second Proof of Loss. Accordingly, summary judgment is due to be denied. See Young, 2014 WL 1456408, at *1, *3.
"[F]ailure to file a proof of loss bars recovery absent an express written waiver of the proof-of-loss requirement by the Administrator." Shuford, 508 F.3d at 1343. The SFIP does not allow for constructive waiver. See Suopys v. Omaha Prop. & Cas., 404 F.3d 805, 811 (3d Cir. 2005). Rather, a waiver argument is viable only where there is an actual written waiver from the Federal Insurance Administrator. Sanz, 328 F.3d at 1318-19; see also 44 C.F.R. Pt. 61, App. A(1), art. VII.D. In order for a communication from the FEMA Administrator to waive the proof-of-loss requirement, "the waiver must be apparent from the face of the document itself." Howell, 540 F.Supp.2d at 628. (FEMA's written notice of its willingness to reconsider insureds' claims did not expressly waive the proof of loss requirement). Thus, payment, and an insurer's processing of a claim or payment of a portion of a claim does not constitute a waiver of the proof of loss requirement, see Greer v. Owners Ins. Co., 434 F.Supp.2d 1267, 1277-78 (N.D.Fla.2006), and an insurer does not "constructively waive" the proof-of-loss requirement by processing a claim, or denying a claim for a reason other than failure to file a timely proof of loss. See Shuford, 508 F.3d at 1343 (citing Sanz, 328 F.3d at 1318-19).
Plaintiffs argue that the FEMA administrator waived the 60-day Proof of Loss requirement in the March 18, 2013 communication issued in response to Hartford's March 15 Request for Waiver. Plaintiffs' Response at 8. Plaintiffs contend that Hartford's 03/15/13 Request for Waiver mentions Plaintiffs' supplemental proof of loss (which listed $125,293.38 in claims) four times, and includes a list of specified damages that were all presented in the
Id. at 8-9. Plaintiffs further contend that the reference to $29,717.26 in the 03/15/13 Request for Waiver is "ambiguous." Id.
Hartford cites to the language of the Waiver which it argues is self-limiting to "`only the amount of the loss [$29,717.26] and scope of the damages outlined in the request and otherwise does not waive the proof of loss or any other requirement of the Standard Flood Insurance Policy,'" and does not provide a general waiver of the SFIP Proof of Loss requirement. Defendant's Motion at 10, 12, 19. According to Hartford's flood insurance claims servicer Scott Holmes, Claims Technical Director with NFS, Hartford, through NFS "had requested a waiver from FEMA to pay the Plaintiffs' supplemental flood claim of $29,717.26 on March 15, 2013." Holmes Aff. ¶ 21.
To be sure, FEMA and Hartford's agreement to reopen the Slaters' file to further consider the Slaters' claim is not, in and of itself, an express waiver of the SFIP Proof-of Loss requirement. See Sanz, 328 F.3d at 1318-19. However, the Administrator here did issue an express waiver in writing. See Waiver. The issue is whether that March 18, 2013 Waiver may be construed as a matter of law as waiving the Proof of Loss requirement only in the amount of $29,717.26, or as to the full scope of damages described in the 08/28/12 Second Proof of Loss.
In Shuford, 508 F.3d at 1342, the Eleventh Circuit construed the plain language of a waiver by the FEMA administrator which extended the post-Hurricane Katrina Proof of Loss deadline requirement from 60 days to one year. The court rejected the claimant's argument that the Administrator's use of the word "may" in the phrase "`a policyholder may submit to the insurer a proof of loss,'" meant that the claimant had a choice of whether to challenge the WYO denial decision, and that the filing of the proof of loss was optional, because the claimant's proposed construction would render other parts of the limited waiver superfluous. 508 F.3d at 1342; see also e.g. Howell, 540 F.Supp.2d at 628 (court concludes after reviewing the language of FEMA bulletin implementing a claim review process, that the "document is insufficient as a matter of law to constitute an express waiver under the terms of the SFIP;" "in order for us to conclude that FEMA bulletin waived the proof of loss requirement, the waiver must be apparent from the face of the document itself"); Goodman v. Fid. Nat'l Prop. & Cas. Ins. Co., No. 3:06cv93/MCR/EMT, 2007 WL 1521479, at *3 (N.D.Fla. May 23, 2007) (concluding what a "reasonable interpretation" of the use of the word "may" in administrator's post-Hurricane Katrina waiver by "reading the memorandum in its entirety."). However, in Provenza v. State Farm & Cas. Ins. Co., No. 06-7319, 2007 WL 1655567 (E.D.La. June 6, 2007), the court determined that a post-Hurricane Katrina FEMA waiver reference to "may" "could be ambiguous to a claimant such that summary judgment against a claimant who relied on the waiver is inappropriate," and that a waiver may be "too ambiguous to support summary judgment against a claimant who may have been confused by
By approving the Request for Waiver and stating that "[t]his limited waiver is only for the amount of the loss and the scope of the damages outlined in this request," the Administrator's Waiver is ambiguous. On the one hand, The Request for Waiver refers to "Building R/C: $29,717.26/Current Amt Requested" and "ACV Payable: $29,717.26/Current Amt Requested $16,567.63/ $15,567.63 Previous Claim Pmt(s)". On the other hand, the Request for Waiver does specifically refer to the "08/28/2012 — supplemental" Proof of Loss three times, and to "Supplemental damages" which "include additional allowance for insulation & drywall, dumpster rental, seal walls, texture for walls, high end ceramic floor tile, wood base cabinetry for the kitchen, allowance to remove and re-install appliances, and high end wood base cabinetry." Request for Waiver. The Request for Waiver justified the delay in submitting the "supplemental POL," which appears to be the 08/28/12 Second Proof of Loss, as being late "due to the insured needing additional time to gather supporting documentation for their claim as well as time for an engineer to inspect the property and make a determination if flood had damaged the insured property." Id. Even if the "amount of the loss" is construed to be the $29,717.26 referenced in the Request for Waiver, the Administrator's Waiver states that it applies to "the amount of the loss and the scope of the damages" in the Request for Waiver. The "scope of the damages" appears to be those enumerated in the Request for Waiver, and set forth in the 08/28/12 Second Proof of Loss which is mentioned multiple times in the Request for Waiver. As such, the scope of the Administrator's express written waiver is ambiguous on its face. Construing the facts in favor of the Slaters, as the nonmoving party as well as the insured, summary judgment in favor of Hartford with regard to the Administrator's Waiver of the 60-day Proof of Loss requirement, is due to be denied.
The Slaters argue that Hartford repudiated the SFIP by failing to send an adjuster to inspect the property by June 29, 2012, within 48 hours of the Slaters giving notice to Hartford of the flood, as required by the FEMA claims manual. Plaintiffs' Response at 10-11 (citing (Doc. 38-6; NFIP Adjuster Claims Manual ¶ 2.i)).
The doctrine of repudiation is a "legal" as opposed to an equitable doctrine. Studio Frames Ltd. v. Standard Fire Ins. Co., 369 F.3d 376, 381 (4th Cir. 2004). Repudiation, "sometimes called `anticipatory breach'" occurs
Studio Frames, 369 F.3d at 381. "Repudiation" is "a "`statement by the obligor to the obligee indicating that the obligor will commit a breach that would of itself give the obligee a claim for damage for total breach."'" Evanoff v. Standard Fire Ins. Co., 534 F.3d 516 (6th Cir.2008) (quoting Mobil Oil Exploration & Producing Southeast v. United States, 530 U.S. 604, 608, 120 S.Ct. 2423, 147 L.Ed.2d 528 (2000) (quoting Restatement (Second) of Contracts § 250 (1979))).
The Eleventh Circuit has not specifically addressed the question of whether the doctrine of repudiation can apply to an SFIP. However, the Fourth Circuit has held that it might apply. Studio Frames, 369 F.3d at 381 ("Here we must consider ... whether the otherwise binding requirement that [the insured] file a proof of loss could be legally excused by the repudiation of the SFIP by [the insured]" and applying federal common law). In Studio Frames, the WYO insurer informed a lessee attempting to make a flood insurance claim, that a tenant cannot purchase SFIP building coverage for a building he does not own. The insurer attempted to return the premiums paid by the lessee. On these facts, the court held that "the policy at issue here may be repudiated," and remanded the case to the district court to determine whether the insurer's conduct and statements actually did amount to a repudiation. Id. at 383 (emphasis added). The Second Circuit Court of Appeals has declined to adopt the Fourth Circuit's Studio Frames reasoning, and concluded that it is "at best questionable whether the doctrine of repudiation has any application in the context of policies issued under the NFIP." Jacobson v. Metro. Prop. & Cas. Ins. Co., 672 F.3d 171, 177 (2d Cir.2012); see also Gunter v. Farmers Ins. Co., 736 F.3d 768, 775 (8th Cir.2013) (recognizing split among United States Circuit Court of Appeals as to whether the doctrine of repudiation applies to the SFIP).
Assuming for discussion purposes that the doctrine of repudiation might be applicable to an SFIP, in order to repudiate an insurance policy, "the insurer must renounce the policy rather than simply deny[ ] the claim under the policy." Jacobson v. Metro. Prop. & Cas. Ins. Co., No. 1:09-CV-0158 (LEK/DRH), 2010 WL 5391530, at *5 (N.D.N.Y. Dec. 21, 2010), aff'd, 672 F.3d 171 (2d Cir.2012); see also Gunter, 736 F.3d at 775 (insurer did not repudiate SFIP where it "did not disavow the policy, contend that it was not bound by the policy's terms, or attempt to return... the premiums paid under the policy"). "Indeed, a denial of a claim for benefits under an insurance policy does not constitute repudiation." Richardson, 279 Fed. Appx. at 299. Additionally, where the dispute between the insurer and the insured revolves around the amount of loss and not the coverage itself, the insurer has not repudiated the contract. See Norman v. Fid. Nat'l Ins. Co., 354 Fed.Appx. 934, 937
Moreover, Hartford is not estopped from denying coverage based upon its own delays, the Administrator's acceptance of a Supplemental Proof of Loss, or its denial of benefits for reasons unrelated to the timeliness of the Supplemental Proof of Loss. The Eleventh Circuit has observed that "equitable estoppel is unavailable in a claim against the government for funds from the public treasury." Shuford, 508 F.3d at 1342-43 (citing Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 424-34, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990) (holding that the Appropriations Clause of the United States Constitution prohibited monetary payments from the federal treasury that have not been authorized by Congress)). Because a WYO insurer is "acting as a fiscal agent of the United States, ... [a] suit for benefits under the National Flood Insurance Program raises the same concerns, under the Appropriations Clause, as a suit against a governmental entity because benefits under the National Flood Insurance Program are paid from the federal treasury." Id. at 1343 (citing 42 U.S.C. § 4071(a)(1)); see also Sanz, 328 F.3d at 1319-20.
For example, in Dawkins v. Witt, 318 F.3d 606 (4th Cir.2003), the court declined to estop the insurer from first asserting the 60-day proof of loss deadline requirement as a defense to an insured's breach of contract claim regarding unpaid flood insurance claims, even where it was undisputed that "FEMA accepted the plaintiffs' first proof of loss after the 60 day period expired, that [the insurer's adjuster] stated that the 60 day requirement would not be enforced, that FEMA continued to address the claim well after the 60 day period expired, and the Federal Insurance Administrator did not provide an express written waiver of the 60 day requirement." Dawkins, 318 F.3d at 610; see also e.g. Gunter, 736 F.3d at 774. Moreover, the Eleventh Circuit has observed that even if estoppel is available, "it is warranted only if affirmative and egregious misconduct by government agents exists." Sanz, 328 F.3d at 1319-20; see also Dawkins, 318 F.3d at 611-12. Thus, even assuming that equitable estoppel is available in the SFIP context, the Slaters have not adduced any evidence of "`affirmative and egregious misconduct'" on the part of Hartford, such that a claim of equitable estoppel might be available. See Shuford, 508 F.3d at 1343 (quoting Sanz, 328 F.3d at 1319-20).
In their Motion for Partial Summary Judgment, the Slaters seek a determination, as a matter of law, that Hartford's SFIP "provides coverage for mold damage in Plaintiffs' home." Plaintiffs' Motion at 1. The Slaters argue that "[a]s a result of the storm, portions of the home were damaged by mold and mildew, although the extent of the damage is disputed."
On this record, the Court concludes that there are genuine and disputed issues of material fact that preclude entry of partial summary judgment in Plaintiffs' favor regarding the applicability of the SFIP mold and mildew exclusion exception in this case. First, the evidence is disputed and inconclusive as to whether the extent of the alleged mold and mildew damage was within the Plaintiffs' control, and whether Plaintiffs adequately "maintain[ed] the property after the flood recede[d]." See 44 C.F.R. Pt. 61, App. A(1), art. V.D.4.b.(3). Additionally, factual issues exist as to the amount of the Slaters' $125,293.38 claim that they attribute to mold and mildew damage,
Upon due consideration, it is hereby
1. Defendant Hartford Insurance Company of the Midwest's Motion for Summary Judgment and Incorporated Memorandum (Doc. 36) is
2. Plaintiffs' Motion for Partial Summary Judgment and Memorandum of Law (Doc. 28) is
DeCosta v. Allstate Ins. Co., 730 F.3d 76, 82 (1st Cir.2013).
Id. Thus, case law construing the former Rule 56 standard of review remains viable and is applicable here.
Additionally, the Slaters may not be excused from the Proof of Loss requirement because their 08/28/12 Second Proof of Loss missed the 60-day deadline by one day, and thus constituted a de minimis error. See Response at 11-15. Substantial compliance with the requirements of the SFIP is not sufficient. Rather, the insured must completely satisfy the Proof of Loss requirement. See Sanz, 328 F.3d at 1317.
