Gumersell v. Director, Federal Emergency Management Agency, 91-1324

Decision Date02 December 1991
Docket NumberNo. 91-1324,91-1324
Citation950 F.2d 550
PartiesJohn D. GUMERSELL; Mary K. Gumersell, Appellants, v. DIRECTOR, FEDERAL EMERGENCY MANAGEMENT AGENCY; Federal Emergency Management Agency, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

John D. Gumersell, St. Louis, Mo., pro se.

Antonio M. Manansala, on brief, for appellants.

Michael B. Hirsch, Washington, D.C., argued (Stephen B. Higgins, U.S. Atty., Henry J. Fredericks, Asst. U.S. Atty., St. Louis, Mo., and Ellen M. Neubauer, Washington, D.C., on brief), for appellees.

Before McMILLIAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and FAGG, Circuit Judge.

McMILLIAN, Circuit Judge.

John D. Gumersell and Mary K. Gumersell ("appellants") appeal from a final order entered in the United States District Court 1 for the Eastern District of Missouri granting summary judgment in favor of the Director of the Federal Emergency Management Agency ("FEMA") and FEMA (together "appellees"). By this civil action, appellants seek recovery of relocation costs under a one-year standard flood insurance policy issued by FEMA pursuant to the National Flood Insurance Act of 1968, 42 U.S.C. §§ 4001-4128. For reversal, appellants argue that the district court erred in holding as a matter of law that appellants have not met statutory and regulatory requirements for recovery of relocation costs under their policy. For the reasons discussed below, we affirm the judgment of the district court.

Background

Appellants own a summer home on Plattin Creek in Jefferson County, Missouri ("the Property"). The Property was insured by a one-year standard flood insurance policy, effective May 17, 1987, issued by FEMA pursuant to the National Flood Insurance Act of 1968 ("the Act"), 42 U.S.C. §§ 4001-4128.

While appellants' policy was in effect, the Act was amended by the so-called "Upton-Jones amendment," codified at 42 U.S.C. § 4013(c). That provision states in pertinent part:

(c) Schedule for payment of flood insurance for structures on land subject to imminent collapse or subsidence

(1) If any structure covered by a contract for flood insurance under this subchapter and located on land that is along the shore of a lake or other body of water is certified by an appropriate State or local land use authority to be subject to imminent collapse or subsidence as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels, the Director [of FEMA] shall (following final determination by the Director that the claim is in compliance with regulations developed pursuant to paragraph (6)(A) ) pay amounts under such flood insurance contract for proper demolition or relocation....

* * * * * *

(6)(A) The Director shall promulgate regulations and guidelines to implement the provisions of this subsection.

(B) Prior to issuance of regulations regarding the State and local certifications pursuant to paragraph (1), all provisions of this subsection shall apply to any structure which is determined by the Director--

(i) to otherwise meet the requirements of this subsection; and

(ii) to have been condemned by a State or local authority and to be subject to imminent collapse or subsidence as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels.

42 U.S.C. § 4013(c)(1), (6) (emphasis added).

On December 7, 1988, appellants filed a notice of loss with FEMA seeking to recover $27,100 in relocation costs under the policy. The notice of loss states "[i]nsured is concerned that with the next flood the dwelling will be severely damaged if not swept away. Coverage is provided under the Upton Amendment." By letter dated February 6, 1989, a claims examiner for the FEMA National Flood Insurance Program informed appellants that in order for them to recover such benefits, "the insured structure must be certified or condemned by a state or local authority having jurisdiction over the property." In response, appellants forwarded to the claims examiner a letter dated February 27, 1989, from the Jefferson County Building Commission, which states "[t]he erosion [at the Property] was caused by flood waters and your home is subject to imminent collapse or subsidence as a result from further erosion or undermining caused by currents of water exceeding anticipated levels."

By letter dated May 31, 1989, the Federal Insurance Administrator, FEMA's delegated agent, denied appellants' claim, making the final determination that "[t]he claim for benefits under [42 U.S.C. § 4013(c) ] is disallowed because the structure has not been condemned by an appropriate State or local land use authority or certified by the State as required under [42 U.S.C. § 4013(c) ]."

On May 23, 1990, appellants filed this action for breach of contract in the United States District Court for the Eastern District of Missouri. Appellees moved for summary judgment on grounds that the undisputed facts pertaining to appellants' claim for benefits failed to establish appellants' entitlement to relocation costs because the Property had been neither condemned nor appropriately certified as required under applicable statutes and regulations. The district court granted appellees' motion for summary judgment, thus upholding the agency's denial of benefits. Gumersell v. Director, No. 90-985C(1) (E.D.Mo. Dec. 3, 1990) (Memorandum; Order). This appeal followed.

Discussion
The Statutory/Regulatory Framework

The Upton-Jones amendment sets forth two basic methods by which an insured may recover flood insurance benefits under its provisions. Briefly summarized, the insured may obtain such benefits if: (1) the Director of FEMA has determined that the insured property has been condemned by a State or local authority and is subject to imminent collapse or subsidence as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels (42 U.S.C. § 4013(c)(6)(B)); or (2) the insured property has been certified by an appropriate State or local land use authority to be subject to imminent collapse or subsidence as a result of the requisite flood conditions (42 U.S.C. § 4013(c)(1)), provided such certification is consistent with applicable regulations and guidelines promulgated by the Director of FEMA (42 U.S.C. § 4013(c)(1), (6)(A)).

Pursuant to § 4013(c)(6)(A), the Director of FEMA promulgated applicable regulations, found at 44 C.F.R. §§ 63.1-63.18 (1990). These regulations provide, in pertinent part, that a State may obtain authority to certify structures subject to imminent collapse due to erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels provided specific criteria have been met by the State and the State has applied for and received from FEMA authorization to certify such flood-endangered structures. 44 C.F.R. §§ 63.1-63.18. The regulations do not provide for certification by local authorities.

The regulations promulgated by the Director of FEMA to implement the Upton-Jones amendment were originally published for comment on September 23, 1988, in the Federal Register. 53 Fed.Reg. 36,973-36,977 (1988) (to be codified at 44 C.F.R. §§ 63.1-63.18). The preamble to the interim rule setting forth the regulations states:

Although Pub.L. 100-242 [codified at 42 U.S.C. § 4013(c) ] provides for the eventual certification of imminent collapse by both State and local authorities, this interim rule only allows for State certification to be made by States that meet the qualification criteria defined in the rule. Furthermore, because riverine erosion data is generally not available, nor is the criteria of imminent collapse defined in this rule applicable to riverine areas, certifications by approved States is restricted to coastal areas, including the Great Lakes. Claims for benefits in riverine areas will continue to be evaluated on the basis of condemnation.

Id. at 36,974 (emphasis added).

Summary Judgment

In this case, the Property has never been condemned and there is no factual dispute concerning condemnation. 2 Rather, the sole issue in this case is whether the district court erred in granting appellees summary judgment under the certification requirement set forth in the Upton-Jones amendment, 42 U.S.C. § 4013(c), and the regulations promulgated pursuant thereto, 44 C.F.R. §§ 63.1-63.18.

We review a grant of summary judgment de novo. The question before the district court, and this court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue of fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (Celotex ); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250, 106 S.Ct. 2505, 2510-2511, 91 L.Ed.2d 202 (1986). Rule 56(c) of the Federal Rules of Civil Procedure mandates the entry of summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.

Compliance with the certification requirement set forth in 42 U.S.C. § 4013(c) and 44 C.F.R. §§ 63.1-63.18 is an essential element of appellants' case, on which appellants bear the ultimate burden of proof. The district court granted summary judgment against appellants because they failed to make a sufficient showing of compliance with those provisions. Gumersell v. Director, No. 90-985C(1), slip op. at 5 (Memorandum) ("no genuine issue of material fact exists as to a controlling question raised by [appellants'] complaint ...").

Appellants assert two basic grounds on which this court should reverse the district court's grant of summary judgment. First, appellants generally...

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