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SCHUMITZKI v. DIRECTOR

January 21, 1987

Martin Schumitzki and Caroline Schumitzki, husband and wife, Plaintiffs,
v.
Director, Federal Emergency Management Agency, Defendant



The opinion of the court was delivered by: GERRY

 Plaintiffs, Martin and Caroline Schumitzki, are the owners of a house in Wildwood Crest, New Jersey. The house was insured under a standard federal flood insurance policy. The plaintiffs claim that the house suffered certain structural damage as a result of a general condition of flooding on March 29, 1985. They have brought this action pursuant to 42 U.S.C. § 4072, against the Director of the Federal Emergency Management Agency (FEMA), which is the federal agency responsible for administering the National Flood Insurance Program (NFIP), to recover under the policy.

 Presently before this court is defendant's motion for summary judgment. Defendant argues that the plaintiffs cannot maintain this action because they have failed to comply with one of the conditions precedent to suit; namely, the filing of a proof of loss form with the insurer. For the reasons set forth below, we agree.

 The policy of flood insurance at issue in this case is the Standard Flood Insurance Policy (SFIP), Dwelling Form, 44 C.F.R. Part 61, App. A(1) (1983). The requirements for recovery under the policy are set forth at Article VIII, para. I. This section provides that in the case of loss due to flood, the insured must notify the insurer in writing as soon as practicable and "within 60 days after the loss, send us a proof of loss, which is your statement as to the amount you are claiming under the policy signed and sworn to by you . . . ." The section also describes the information that must be provided in the proof of loss. Article VIII, para. I, further provides:

 
. . .
 
5. The insurance adjuster whom we hire to investigate your claim may furnish you with a proof of loss form, and she or he may help you to complete it. However, this is a matter of courtesy only, and you must still send us a proof of loss within 60 days after the loss even if the adjuster does not furnish the form or help you complete it. In completing the proof of loss, you must use your own judgment concerning the amount of loss and the justification for that amount; the adjuster is not authorized to approve or disapprove claims or to tell you whether your claim will be approved by us.
 
6. We may at our option, waive the requirement for the completion and filing of a proof of loss in certain cases, in which event you will be required to sign and, at our option, swear to an adjuster's report of the loss which includes information about your loss and the damages needed by us in order to adjust your claim. . . .

 The policy also expressly provides that any waiver of its provisions must be in writing. See Article VIII, para. D, and 44 C.F.R. § 61.13(d).

 Finally, the SFIP sets forth the procedure for filing suit, after denial of a claim, in Article VIII, para. Q:

 
Conditions for filing a lawsuit. You may not sue us to recover money under this policy unless you have complied with all the requirements of the policy. If you do sue, you must start the suit within twelve (12) months from the date we mailed you notice of your claim, and you must file the suit in the United States District Court for the district in which the insured property was located at the time of the loss.

 It is also undisputed that plaintiffs did not submit a proof of loss, or its equivalent, to the NFIP at any time prior to the institution of this action. In addition, NFIP did not give plaintiffs a written waiver of this requirement.

 Numerous courts have held that an insured's failure to comply with the proof of loss requirement of a federal insurance policy bars a subsequent action for recovery under that policy. See, e.g., Cross Queen, Inc. v. Director, FEMA, 516 F. Supp. 806 (D. V.I. 1980); Harper v. National Flood Insurers Ass'n, 516 F. Supp. 725 (M.D. Pa. 1981); Continental Imports, Inc. v. Macy, 510 F. Supp. 64 (E.D. Pa. 1981); Margate City Yacht Club v. FEMA, No. 82-2291 (D. N.J., July 15, 1983) (Cohen, J.), aff'd, 732 F.2d 146 (3d Cir. 1984); Nymmco of New Jersey v. Giofrida, No. 82-2861 (D. N.J.), aff'd, 740 F.2d 950 (3d Cir. 1984). This is true even where the claim is denied prior to the expiration of the 60 day period provided for filing the proof of loss. See, e.g., Continental Imports, supra.

 Plaintiffs raise several arguments in opposition to dismissal of the present action. First, they argue that the SFIP is a contract of adhesion with ambiguous terms, and therefore that it should not be enforced against them. Specifically, they contend that the policy can be read as only requiring the proof of loss for adjustment, settlement and payment of an approved claim, and not for institution of ...


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