Drewett v. Aetna Cas. & Sur. Co.

• Decision Date: 27 September 1976
• Docket Number: No. 76-1372,76-1372
• Citation: 539 F.2d 496
• Parties: Glen DREWETT, Plaintiff-Appellant, v. AETNA CASUALTY & SURETY COMPANY and National Flood Insurers Association, Defendants-Appellees. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 496

539 F.2d 496

Glen DREWETT, Plaintiff-Appellant, v. AETNA CASUALTY & SURETY COMPANY and National Flood Insurers Association, Defendants-Appellees.

No. 76-1372

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

Sept. 27, 1976.

Glenn T. Cambre, Speedy O. Long, Jena, La., for plaintiff-appellant.

P. A. Bienvenu, P. Albert Bienvenu, Jr., New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before BROWN, Chief Judge, and GEWIN and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

Plaintiff Glen Drewett sued defendant National Flood Insurers Association in federal district court to recover on a flood insurance policy issued under the provisions of the National Flood Insurance Act of 1968, as amended, codified at 42 U.S.C. § 4001 et seq. After a bench trial the district court denied recovery, and Drewett appeals. For the reasons stated herein, we affirm.

This court also must dispose of appellant Drewett's motion to tax to the appellee the cost of allegedly unnecessary portions of the appendix on appeal ordered by appellee. For the reasons stated herein, we grant this motion.

I. MERITS

On May 2, 1973 Drewett applied for and was issued a flood insurance policy under the National Flood Insurance Program covering his "camp house" which rested on wooden "stilts" above the ground. On and before that date flood waters had already risen three to four feet up the stilts, although the waters had not yet reached the living quarters of the house itself. On May 5 the levee surrounding the house broke and the waters rose yet further, entering the living quarters of the house. The defendant Association denied Drewett's claim under his policy, and Drewett sued in federal district court under 42 U.S.C. § 4053.

The district court in a written opinion held for defendant on the ground that, under general principles of insurance law, where a loss already is in progress at the time a policy is issued, the contract of insurance does not take effect. The district court also ordered the Association to return to Drewett the premium he had paid.

Drewett appeals on the ground that the district court erred in applying the "loss-in-progress" principle to a policy issued under the provisions of the National Flood Insurance Program. He argues that, because the statute creating the Program anticipates that premiums may be charged that are lower than the actuarial cost of insuring property in flood-prone areas (the difference being subsidized by the federal government), see 42 U.S.C. §§ 4014 and 4015, it is inappropriate to apply insurance law principles developed originally to apply to profit-seeking insurers. ¹ While conceding that the Association is not liable for damage which the flood did to his house before the policy was issued, Drewett argues that he should recover for the additional damage done when the waters continued to rise after the policy was issued.

Drewett's contention is without merit. The Flood Insurance Program is administered with cooperation between the federal government and private insurance companies; the private companies carry some of the risk, although the federal government stands ready to reinsure and reimburse excessive losses. 42 U.S.C. §§ 4017, 4041-84. The Program also requires ongoing actuarial studies to help set the premiums to be charged, 42 U.S.C. § 4014. The eventual goal of the Program is to discourage building in flood-prone areas by raising, over time, the premiums actually charged to equal the actuarial cost of flood insurance. See U.S. Code Congressional and Administrative News (1968) at 2969, reprinting House Report No. 1585, 90th Cong., 2d Sess. (1968).

In short, although the Program offers subsidized flood insurance, it is designed to operate much like any private insurance company and eventually to eliminate the subsidy. Because the Program's exposure to claims and its premiums are required to be estimated in accordance with standard insurance practices, and because private insurers carry part of the risk, it is clear that Congress did not intend to abrogate standard insurance law principles which affect such estimates and risks. Nothing in the statute or regulations promulgated under it, see 24 C.F.R. Parts 1909-18, requires otherwise. Drewett cites no authority to suggest the contrary.

In a case very nearly identical to this one, Presley v. National Flood Insurers Association, 399 F.Supp. 1242 (E.D.Mo.1975), the district court held that the "loss-in-progress" principle applies to policies issued under the Program, rejecting the same arguments made by Drewett here. This plainly is the correct conclusion. We affirm.

II. APPELLANT'S MOTION TO TAX COSTS OF SUPPLEMENTAL APPENDIX TO APPELLEE

Appellant filed a 31 page Appendix with his brief to this court, containing reproductions of the docket entries in the district court; his complaint and appellee's answer; appellee's motion for summary judgment, appellant's response in opposition, and the district court's partial grant of the motion; both parties' trial memoranda; the written opinion of the district court holding for appellee on the merits; the judgment; and the contract of insurance. The Appendix cost $76.30 to print.

Appellee designated, as additional portions of the record to be reproduced as a Supplemental Appendix, literally everything else in the record below. This Supplemental Appendix is 212 pages long. Among other things, it contains a reproduction of the entire trial transcript (Supp.App. at 82-187); a copy of the insurance contract, which was already reproduced in the original Appendix (compare Supp.App. at 190-94 with App. at 27-31); copies of 24 photographs of appellant's camp house (Supp.App. at 23, 32-33, 198-205, 209); two separate reproductions of the same diagram of the floor plan of the camp house (compare Supp.App. at 22 with id. at 208); two separate copies of the same statement of Glen Drewett dated August 8, 1973 (compare Supp.App. at 24 with id. at 211); copies of miscellaneous correspondence among the parties and the district court relating to such matters as the filing of pleadings, bonds, interrogatories, and motions (Supp.App. at 8-10, 14-15, 26, 34, 38, 43, 50, 55, 58, 63, 70-76, 78, 81); copies of the parties' motions and memoranda of law to the trial court on a variety of issues at all stages of the proceedings (Supp.App. at 1-7, 16-17, 27-29, 39-42, 44-48, 51-54, 56-57, 64-69); copies of interrogatories, answers, and affidavits (Supp.App. at 11-12, 18-21, 30-31, 35); a copy of the pre-trial order (Supp.App. at 59-62); copies of the notice of appeal and receipt for appeal bond (Supp.App. at 77, 80); and more. This Supplemental Appendix cost $533.68 to print.

Appellant alleges that appellee's designation of the entire record for reproduction in the Supplemental Appendix was not necessary to enable us to decide the issue on appeal, and he moves that the cost of printing the Supplemental Appendix be charged to appellee. Fed.R.App.P. 30(a) and (b) describe the portions of the record ² which are to be reproduced in the appendix and the methods by which the parties are to determine the contents of the appendix; and (b) authorizes the court of appeals to impose the cost of unnecessary portions of the appendix on the party designating them. These sections state (emphasis added):

(a) Duty of Appellant to Prepare and File; Content of Appendix . . . The appellant shall prepare and file an appendix to the briefs which shall contain: (1) the relevant docket entries in the proceeding below; (2) any relevant portions of the pleadings, charge, findings or opinion; (3) the judgment, order or decision in question; and (4) any other parts of the record to which the parties wish to direct the particular attention of the court. The fact that parts of the record are not included in the appendix shall not prevent the parties or the court from relying on such parts. . . .

(b) Determination of Contents of Appendix; Cost of Producing. The parties are encouraged to agree as to the contents of the appendix. In the absence of agreement, the appellant shall . . . serve on the appellee a designation of the parts of the record which he intends to include in the appendix and a statement of the issues which he intends to present for review. If the appellee deems it necessary to direct the particular attention of the court to parts of the record not designated by the appellant, he shall . . . serve upon the appellant a designation of those parts. The appellant shall include in the appendix the parts thus designated. In designating parts of the record for inclusion in the appendix, the parties shall have regard for the fact that the entire record is always available to the court for reference and examination and shall not engage in unnecessary designation.

Unless the parties otherwise agree, the cost of producing the appendix shall initially be paid by the appellant, but if the appellant considers that parts of the record designated by the appellee for inclusion are unnecessary for the determination of the issues presented he may so advise the appellee and the appellee shall advance the cost of including such parts. The cost of producing the appendix shall be taxed as costs in the case, but if either party shall cause matters to be included in the appendix unnecessarily the court may impose the cost of producing such parts on the party. ³

This court, through adoption of Fifth Circuit Local Rule 13(b), ⁴ has emphasized its concern that the cost to the parties of appeals should not be inflated unnecessarily by careless practice in designating portions of the record to be reproduced in the appendix: ⁵

(b) Contents of Appendix : Counsel should bear in mind the Court's desire to minimize the cost of reproducing the appendix, consistent with the obligation and responsibility of the parties to reproduce therein those parts of the...