United States District Court, D. New Jersey
Audwin F. Levasseur, Esquire, The Law Offices of Harbatkin & Levasseur, P.A., Englewood Cliffs, New Jersey, Counsel for Plaintiff.
Catherine S. Straggas, Esquire, Margolis Edelstein, Philadelphia, Pennsylvania, Counsel for Defendant.
NOEL L. HILLMAN, District Judge.
On February 12, 2014, Plaintiff Emma Linblad filed a two-count complaint alleging breach of contract, one pursuant to New Jersey state law and one pursuant to the National Flood Insurance Act of 1968, 42 U.S.C. §§ 4001-4129 (hereafter, "NFIA"), against Defendant Nationwide Mutual Insurance Company. Presently before the Court is Defendant's motion [Doc. No. 7] seeking to dismiss both claims as barred by the statute of limitations. Alternatively, Defendant seeks dismissal of Plaintiff's prayer for consequential damages and attorney's fees. Plaintiff did not file a response to the motion. The Court has considered Defendant's submission and decides this matter pursuant to Federal Rule of Civil Procedure 78.
For the reasons that follow, Defendant's motion to dismiss will be granted in part and denied in part.
The Court has subject matter jurisdiction over Plaintiff's breach of contract claims pursuant to 42 U.S.C. § 4072, as well as 28 U.S.C. § 1331, because the controversy arises under the laws of the United States, including the NFIA. Van Holt v. Liberty Mut. Fire Ins. Co., 163 F.3d 161, 167 (3d Cir. 1998) (holding that "42 U.S.C. § 4072 vests district courts with original exclusive jurisdiction over suits by claimants against [Write Your Own insurance] companies based on partial or total disallowance of claims for insurance arising out of the National Flood Insurance Act.").
This suit concerns the adjustment of an insurance claim under a policy placed through the National Flood Insurance Program ("NFIP"). (Compl. ¶ 5.) As the Third Circuit has explained, the NFIP is "a federally supervised and guaranteed insurance program presently administered by the Federal Emergency Management Agency (FEMA') pursuant to the NFIA and its corresponding regulations." Van Holt, 163 F.3d at 165 (citing 44 C.F.R. §§ 59.1-77.2). The NFIP essentially "guarantees and subsidizes flood insurance." Brusco v. Harleysville Ins. Co., No. 14-914, 2014 WL 2916716, at *1 (D.N.J. June 26, 2014).
"In 1983, pursuant to regulatory authority granted by Congress in 42 U.S.C. § 4081(a), FEMA created the Write Your Own' (WYO') program." Van Holt, 163 F.3d at 165 (citing 44 C.F.R. §§ 62.23-.24). The WYO program authorizes "private insurance companies like [Defendant] [to] write their own insurance policies." Id . (citing 44 C.F.R. § 62.23). Through the WYO program, Defendant and other private insurance companies "administer standard form policies, pay any excess from premiums to the federal government, and act as fiscal agents' of the United States." Brusco, 2014 WL 2916716, at *1 (citing 44 C.F.R. § 62 app. A (2013)). "[R]egardless [of] whether FEMA or a WYO company issues a flood insurance policy, the United States treasury funds pay off the insureds' claims." Van Holt, 163 F.3d at 165 (citations omitted).
According to the allegations in the complaint, Plaintiff purchased a Standard Flood Insurance Policy ("SFIP"), policy number XXXXXXXXXXXXXX, for her residential property located at 9 North Sacramento Avenue, Ventnor, New Jersey. (Compl. ¶ 5.) Defendant issued the policy in accordance with the NFIP. (Id.) Plaintiff avers that she paid "all related premiums in a timely fashion." (Id. ¶ 6.) On October 29, 2012, within the policy period, Superstorm Sandy struck Ventnor, New Jersey, purportedly causing catastrophic damage to the covered property. (Id. ¶¶ 5, 6.) Plaintiff made a claim for damage to the insured property, but Defendant allegedly "improperly adjusted and otherwise mishandled Plaintiff's claim" insofar as Plaintiff has not received proper payment for the extensive damages caused by Superstorm Sandy. (Id. ¶¶ 7, 11.)
On February 12, 2014, Plaintiff filed the instant civil action for breach of contract under New Jersey law and the NFIA. (Compl. ¶¶ 13, 16.) As noted previously, Defendant seeks dismissal on two grounds. First, Defendant argues that Plaintiff's claims are barred by the statute of limitations. Alternatively, Defendant asserts that Plaintiff's demand for consequential damages and attorney's fees are preempted by the NFIA and the NFIP.
III. STANDARD FOR MOTION TO DISMISS
In considering whether Plaintiff's complaint fails to state a claim, the Court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005); see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) ("[I]n deciding a motion under Fed.R.Civ.P. 12(b)(6), [a district court is]... required to accept as true all factual allegations in the complaint and draw all inferences from the facts alleged in the light most favorable to" the plaintiff). A ...