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Humphrey O. Uddoh v. Selective Insurance Company

July 20, 2012


The opinion of the court was delivered by: William J. Martini, U.S.D.J.:


Pro se Plaintiff Humphrey O. Uddoh brings this National Flood Insurance Act action against Defendant Selective Insurance Company of America ("Selective"), alleging that Selective refused to pay for flood damage covered by Plaintiff's insurance policy on three occasions. This matter comes before the Court on the parties' cross-motions for summary judgment. There was no oral argument. Fed. R. Civ. P. 78(b). For the reasons set forth below, Defendant's motion for summary judgment is GRANTED, and Plaintiff's motion is DENIED.


This action arises out of a flood insurance policy issued pursuant to the National Flood Insurance Program ("NFIP"). See 42 U.S.C. §§ 4001-4129. The NFIP is a federally supervised and guaranteed insurance program presently administered by the Federal Emergency Management Agency ("FEMA") pursuant to the National Flood Insurance Act of 1968 ("NFIA") and its corresponding regulations. See 44 C.F.R. §§ 59.1-77.2. Congress created the program to limit the damage caused by flood disasters through prevention and protective measures, spread the risk of flood damage among many private insurers and the federal government, and make flood insurance "available on reasonable terms and conditions" to those in need of it. See 42 U.S.C. § 4001(a). The NFIP is underwritten by the U.S. Treasury, and all flood loss claims presented under the NFIP are paid directly with U.S. Treasury funds. 44 C.F.R. Pt. 62, App. A, Art. III(D)(1); see also In re Van Holt, 163 F.3d 161, 165 (3d Cir. 1998).

Pursuant to regulatory authority granted by Congress in 42 U.S.C. § 4081(a), FEMA created the "Write Your Own" ("WYO") program, under which private insurance companies write their own insurance policies. See 44 C.F.R. §§ 62.23-.24. However, FEMA fixes the terms and conditions of these policies, which must be issued without alteration as a Standard Flood Insurance Policy ("SFIP"), unless the insured obtains the express written consent of the Federal Insurance Administrator. 44 C.F.R. §§ 61.4(b), 61.13(d). Interpretation of the SFIPs is governed by federal common law. Linder & Assocs. Inc. v. Aetna Cas. & Sur. Co., 166 F.3d 547, 550 (3d Cir. 1999). Because any claim paid by a WYO company is a direct charge to the U.S. Treasury, private insurers must strictly enforce the provisions set forth by FEMA, and courts must ensure that any conditions precedent to payment are strictly construed. See Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947); Am. Compl. Ex. 1 ("SFIP") Art. VII(R), ECF No. 17-1 ("You may not sue us to recover money under this policy unless you have complied with all the requirements of this policy.").

Among other conditions precedent to payment, the SFIP requires the insured to prepare a sworn proof of loss within 60 days of the loss that includes information such as an inventory of damaged property, specifications of the damaged buildings, and detailed documentation supporting the value of the loss and estimating the cost of repairs ("Proof of Loss"). See SFIP Art. VII(J)(3) and (J)(4). The SFIP states that an insurance adjuster may furnish the insured with the Proof of Loss form as "a matter of courtesy," but the insured "must still send the insurer a proof of loss within 60 days after the loss even if the adjuster does not furnish the formor help [the insured to] complete it." SFIP Art. VII(J)(7). The SFIP further states that the insurer "may accept the adjuster's report of the loss instead of [the insured's] proof of loss," but the insured "must sign the adjuster's report." SFIP Art. VII(J)(9).


The following facts are undisputed. Defendant Selective is a WYO Program carrier participating in the NFIP. Affidavit of Steven Weber ("Weber Aff.") ¶ 6, ECF No. 51-5. Selective issued a SFIP to Plaintiff for his home in Jersey City, New Jersey ("the building"), with effective dates from November 11, 2008 to November 11, 2009. Plaintiff made a claim for damage to the building caused by a flood that occurred on February 28, 2009, which Selective denied on March 13, 2009. Id. ¶¶ 10, 13. Plaintiff made a second claim for damage caused by a flood that occurred on November 8, 2009, which Selective denied on December 3, 2009. Id. ¶¶ 15, 21. In the course of inspecting the building to assess Plaintiff's second claim, Selective determined that the lower level of the building should be re-classified as a basement. Id. ¶ 22.

On January 22, 2010, Selective issued a revised SFIP to Plaintiff, with effective dates from November 11, 2009 to November 11, 2010. Id. ¶ 23. The revised SFIP was re-rated to reflect that the building had a finished basement.*fn1 Id. ¶¶ 22, 23. In response to the re-rating, Plaintiff contacted several Selective agents to object to the reclassification. Pl.'s Aff. ¶¶ 26, 27, ECF No. 52-1. One of the Selective agents promised Plaintiff that his policy would not be re-rated until a structural engineer was sent to assess the building. Plaintiff later discovered that his policy was re-rated despite the fact that no structural engineer was sent. Id. ¶ 27. Plaintiff made a third claim for damage to the building caused by a flood that occurred on March 14, 2010. Weber Aff. ¶ 24. On April 6, 2010, Selective closed Plaintiff's third flood claim without payment, stating that the covered damages caused by the flood were less than Plaintiff's deductible. Id. ¶ 28. One day later, on April 7, 2010, Plaintiff faxed his own damage estimate to Selective, which Selective did not consider in adjusting Plaintiff's claim. Pl.'s Aff. ¶ 33.

Plaintiff did not submit a Proof of Loss for his first, second, or third flood loss claims. Weber Aff. ¶¶ 31-32. There is no evidence of any written waiver by the Federal Insurance Administrator of the time period in which to submit a Proof of Loss. Id. ¶ 33.


Summary judgment is appropriate "if the pleadings, the discovery [including, depositions, answers to interrogatories, and admissions on file] and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable jury could find for the non-moving party, and is material if it will affect the outcome of the trial under governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court considers all evidence and inferences drawn therefrom in the light most favorable to the non-moving party. Andreoli v. Gates, 482 F.2d 641, 647 (3d Cir. 2007).


In his motion for summary judgment, Plaintiff asserts that Defendant is liable: (1) under federal law for breach of the SFIPs; and (2) under state law for re-rating Plaintiff's policy and mishandling his claims. Defendant cross-moves for summary judgment on each ...

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