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Suopys v. Omaha Property & Casualty

April 15, 2005

ALLEN B. SUOPYS, APPELLANT
v.
OMAHA PROPERTY & CASUALTY



On Appeal from the United States District Court for the District of New Jersey (D.C. No. 02-cv-05743) District Judge: Honorable Garrett E. Brown, Jr.

The opinion of the court was delivered by: Fisher, Circuit Judge.

PRECEDENTIAL

Argued January 25, 2005

Before: SCIRICA, Chief Judge, RENDELL, and FISHER, Circuit Judges.

OPINION OF THE COURT

Allen B. Suopys ("Suopys") appeals from an order of the United States District Court for the District of New Jersey granting summary judgment in favor of Omaha Property & Casualty ("Omaha"). Suopys claims that he sustained property losses that are covered by the Standard Flood Insurance Policy ("SFIP") issued to him by Omaha in its capacity as a "Write-Your-Own" Program Company participant in the National Flood Insurance Program ("NFIP"). This appeal presents the question of whether under the SFIP, the 60-day period for filing proof of loss, including the filing of an adjuster's report in lieu of proof of loss, is waivable absent the consent of the Federal Emergency Management Agency ("FEMA"). The District Court determined that Suopys's claim was barred for failure to timely submit proof of loss or, alternatively, found no coverage for the damage at issue. We will affirm on the former ground and, in doing so, make explicit that the 60-day period for filing proof of loss must be strictly construed.

I.

The National Flood Insurance Act of 1968, 42 U.S.C. §§ 4001-4129, established the NFIP. The NFIP is underwritten by the United States Treasury in order to provide flood insurance below actuarial rates. 42 U.S.C. § 4017 (2003); see also Van Holt v. Liberty Mutual, 163 F.3d 161, 154 n.2 (3d Cir. 1998). The NFIP is administered by FEMA and the Federal Insurance Mitigation Administration ('FIMA"). 42 U.S.C. § 4011 (2003); 44 C.F.R. §§ 59.1-77.2 (2003).

The SFIP is codified at 44 C.F.R. Pt. 61, App. A (2003) and is incorporated into the Code of Federal Regulations by reference at 44 C.F.R. § 61.13(a) (2003). The SFIP and all disputes arising from the handling of any claim under the policy are governed by the flood insurance regulations promulgated by FEMA, the National Flood Insurance Act of 1968, 42 U.S.C. §§ 4001-4129, and federal common law. 44 C.F.R. Pt. 61, App. A(1), Art. 11 (2000) / Art. IX (2003). FEMA provides for marketing and claims adjustment of the SFIP by Write Your Own ("WYO") Companies, who operate as fiscal agents of the United States. 44 C.F.R. §§ 61.13(f), 62.23 (2003); 42 U.S.C. § 4071(a)(1) (2003) (authorizing FEMA director to utilize insurance companies as fiscal agents of the United States).

The WYO Companies are bound to adjust claims in accordance with the terms of the SFIP. The SFIP requires that in adjusting claims, the WYO Company apply its own company standards guided by NFIP Claims manuals issued by FEMA. 44 C.F.R. § 62.23(i)(1) (2003). WYO carriers may not alter, amend, or waive any provision or condition of the SFIP absent express written consent from the Federal Insurance Administrator. 44 C.F.R. Pt. 61, App. (A)(1), Art. 9(D) (2000) / Art. VII(D) (2003); 44 C.F.R. § 61.13(d) (2003).

The SFIP requires that an insured claiming damages for flood loss provide the WYO carrier with proof of loss within 60 days from the date of the alleged loss. 44 C.F.R. Pt. 61 App. A(1), Art. 9(J) (2000) / VII(J) (2003).

II.

Suopys seeks flood insurance coverage for damage to his Forked River, New Jersey summer home sustained on or about June 21, 2001, due to Tropical Storm Allison. Suopys timely notified Omaha of the property damage. By early July 2001, Omaha's claims adjuster inspected the property and observed damage including moisture in the house, water around the doors and carpet edges and upheaval of the concrete slab on which the house was situated. The adjuster indicated that the claim for $12,962.44 (the amount after depreciation and deductibles) should be paid by Omaha within two months of its receipt. Having not received payment by September 2001, Suopys inquired of the adjuster as to the status of his claim and was informed by the adjuster that payment would be forthcoming.

Omaha notified Suopys by letter dated September 27, 2001, that his claim remained open beyond the 60-day period for submitting a proof of loss and indicated that it could either close the claims file without payment, or close it with a possible payment if a proof of loss was received by October 5, 2001. Omaha requested that Suopys contact the adjuster to determine his response given that Omaha did not have authority under the SFIP to act on any request for an ...


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