United States District Court, W.D. Texas, San Antonio Division
PITMAN UNITED STATES DISTRICT JUDGE.
the Court is Defendant National Lloyd's Insurance
Company's Motion for Summary Judgment, filed June 21,
2017. (Dkt. 6). For the reasons that follow, the Court finds
that the motion should be granted.
Patricia Hernandez is an individual residing in Bexar County,
Texas. Defendant National Lloyds Insurance Company is an
insurance carrier licensed to conduct business in the State
held a Standard Flood Insurance Policy (“SFIP”)
issued by Defendant under the National Flood Insurance
Program. See 42 U.S.C. §4011, et seq.
On or around May 15, 2015, Plaintiff alleges that heavy rains
caused temporary though severe flooding in the area of
Plaintiff's home, which resulted in considerable damage
to her home. Plaintiff thereafter submitted a claim to
Defendant, to which Defendant assigned an adjuster. Plaintiff
claims that Defendant's adjuster made a number of
misrepresentations about her claim and policy, including that
the policy did not cover her claim and that the neighboring
homes had not experienced any flooding. Defendant thereafter
denied Plaintiff's claim on the basis that the damage to
Plaintiff's home was caused over a long period of time
rather than by the recent flooding as Plaintiff had claimed.
Plaintiff asserts that the denial was wrongful and has
prevented her from being able to repair her home.
alleges that Defendant acted culpably in many respects in
handling her claim. In addition to making various
misrepresentations, Plaintiff additionally faults Defendant
for failing to conduct a reasonable investigation of her
claim, failing to provide a timely acceptance or denial of
her claim, and failing to pay the claim despite
Defendant's liability being reasonably
judgment is appropriate under Rule 56 of the Federal Rules of
Civil Procedure only “if the movant shows there is no
genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A dispute is genuine only if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 254 (1986). “A fact issue is
‘material' if its resolution could affect the
outcome of the action.” Poole v. City of
Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
party moving for summary judgment bears the initial burden of
“informing the district court of the basis for its
motion, and identifying those portions of [the record] which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). “[T]he moving party may [also]
meet its burden by simply pointing to an absence of evidence
to support the nonmoving party's case.”
Boudreaux v. Swift Transp. Co., 402 F.3d 536, 544
(5th Cir. 2005). The burden then shifts to the nonmoving
party to establish the existence of a genuine issue for
trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 585-87 (1986); Wise v. E.I.
Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir.
1995). After the non-movant has been given the opportunity to
raise a genuine factual issue, if no reasonable juror could
find for the non-movant, summary judgment will be granted.
Miss. River Basin Alliance v. Westphal, 230 F.3d
170, 175 (5th Cir. 2000). The court will view the summary
judgment evidence in the light most favorable to the
non-movant. Rosado v. Deters, 5 F.3d 119, 123 (5th
Defendant points out, state law tort causes of action
concerning the handling of claims for benefits under a SFIP
are preempted by federal law. Wright v. Allstate Ins.
Co., 415 F.3d 384, 389- 90 (5th Cir. 2005) (holding
claims under Texas Insurance Code and Deceptive Trade
Practices Act preempted). Each of Plaintiff's claims
concerns Defendant's investigation, handling, and denial
of her claim for benefits under her SFIP. The Court will
therefore grant summary judgment to Defendant on grounds of
preemption as to Plaintiff's claims arising under the
Texas Insurance Code, the Texas Deceptive Trade Practices
Act, and for breach of the duty of good faith and fair
dealing. See id.
to be considered is Plaintiff's breach of contract claim
for the non-payment of benefits under her insurance policy.
Defendant contends that Plaintiff's claim fails because
she did not file a properly documented and supported proof of
loss, which is a strict prerequisite to the payment of
benefits under a SFIP. The Court agrees. “SFIP policies
require that insureds asserting a claim file a [proof of
loss] within 60 days, subject to such extensions as FEMA may
approve, listing ‘the actual cash value . . . of each
damaged item of insured property . . .[, ] the amount of
damage sustained' and ‘the amount . . . claimed as
due under the policy to cover the loss.'”
Id. at 387 (quoting 44 C.F.R. §§ 61.13(a),
(d), (e) (1993)). “Courts have enforced this
requirement strictly.” Id. “[A]n
insured's failure to provide a complete, sworn proof of
loss statement, as required by the flood insurance policy,
relieves the federal insurer's obligation to pay what
otherwise might be a valid claim.” Gowland v.
Aetna, 143 F.3d 951, 954 (5th Cir. 1998).
has produced the affidavit of Stella Craig, Defendant's
Flood Manager, which attests that Plaintiff did not provide
Defendant with a signed and sworn proof of loss statement
within sixty days of the claimed loss. (Mot. Summ. J. Ex. F,
Dkt. 6-6, at 1). Plaintiffs submission of this document was a
requirement of her policy and a necessary condition precedent
to her receipt of benefits. See 44 C.F.R.
§§ 61.13(a); id. Pt. 61, App. A(1);
Gowland, 143 F.3d at 954. Because Plaintiff has
failed to respond to Defendant's motion for summary
judgment, she has necessarily failed to create a fact dispute
as to whether she properly submitted her proof of loss. The
Court therefore considers Plaintiffs failure to file an
adequate proof of loss to be undisputed, see Fed. R.
Civ. P. 56(e)(2), and finds that Plaintiff was therefore
ineligible to receive ...