Ravasio v. Fid. Nat'l Prop. & Cas. Ins. Co.

• Decision Date: 29 January 2015
• Docket Number: No. 13–CV–1510 ADSGRB.,13–CV–1510 ADSGRB.
• Citation: 81 F.Supp.3d 274
• Parties: Eugene RAVASIO and Mary Ravasio Revocable Trust, Plaintiffs, v. FIDELITY NATIONAL PROPERTY and Casualty Insurance Company, Defendant.
• Court: U.S. District Court — Eastern District of New York

81 F.Supp.3d 274

Eugene RAVASIO and Mary Ravasio Revocable Trust, Plaintiffs

v.FIDELITY NATIONAL PROPERTY and Casualty Insurance Company, Defendant.

No. 13–CV–1510 ADSGRB.

United States District Court, E.D. New York.

Signed Jan. 29, 2015.

Kujawski & Dellicarpini, Deer Park, NY, by Mark C. Kujawski, Esq., of Counsel, for Plaintiffs.

Conway Farrell Curtin and Kelly PC., by Gail M. Kelly, Esq., of Counsel, New York, NY, Nielsen, Carter & Treas, LLC, by Kim T. Britt, Esq., of Counsel, Metairie, LA, for Defendant.

DECISION AND ORDER

SPATT, District Judge.

On February 7, 2013, the Plaintiffs Eugene Ravasio and Mary Ravasio Revocable Trust commenced this action in the Supreme Court of the State of New York, County of Suffolk against the Defendant Fidelity National Property and Casualty Insurance Company (“Fidelity”), a Write–Your–Own (“WYO”) Program Carrier participating in the United States Government's National Flood Insurance Program (“NFIP”), pursuant to the National Flood Insurance Act of 1968 (“NFIA”), 42 U.S.C. § 4001 et seq., as amended. Boiled to its essence, the Plaintiffs allege that Fidelity breached a contract of flood insurance by failing to pay for damages caused by flooding associated with Hurricane Irene that occurred on or about August 28, 2011.

On March 21, 2013, Fidelity removed this case to federal court pursuant to 42 U.S.C. § 4072, 44 C.F.R. Pt. 61, App. A(1), Article VII(R) and Article IX; 28 U.S.C. § 1331 ; 28 U.S.C. § 1337 ; 28 U.S.C. § 1367 ; and 28 U.S.C. § 1441(c).

On August 29, 2014, Fidelity moved pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 56 for summary judgment dismissing the complaint. Fidelity submits that the Plaintiffs failed to comply with the conditions precedent under the subject Standard Flood Insurance Policy (“SFIP”). In particular, Fidelity maintains that the Plaintiffs failed to submit, in connection with their desired relief, a signed and sworn Proof of Loss and supporting documentation, as required by SFIP Article VII(J)(4), prior to filing suit, as required by SFIP Article VII(R).

For the reasons set forth, Fidelity's motion for summary judgment is granted.

I. BACKGROUND

Unless stated otherwise, the following facts are drawn from the parties' Rule 56.1 Statements and the attached exhibits. Triable issues of fact are noted.

Of relevance here, in its capacity as a WYO Program carrier, Fidelity issued to the Plaintiffs SFIP No. 31–25102556560–04, which provided coverage of $250,000, subject to a $5,000 deductible, insuring the building located at 151 Wagstaff Lane in Islip, New York, with an effective date of January 26, 2011 to January 26, 2012.

Following the flooding of the premises that occurred on August 28, 2011 from Hurricane Irene, the Plaintiffs submitted a claim for benefits to Fidelity.

On or about September 1, 2011, Gene Tackett and Clyde Wright, independent adjusters assigned to assist the Plaintiffs in presenting their flood loss claim, inspected the property and found that the floodwaters were limited to the crawlspace. Based on their inspections, Tackett and Wright recommended payment to the Plaintiffs in the amount of $46,271.77.

On or about October 28, 2011, the Plaintiffs executed a Proof of Loss in the amount of $35,960.46 and a Building Replacement Cost Proof of Loss in the amount of $10,311.31 for a total amount of $46,271.77. The Proof of Loss specifically permitted supplemental claims. Fidelity subsequently paid to the Plaintiffs the amount of $46,271.77.

On September 14, 2011, the Federal Emergency Management Agency (“FEMA”), upon authority of 44 C.F.R. § 61.13(d), extended the 60–day deadline for submitting a Proof of Loss in support of a flood claim for Hurricane Irene-related damages in the State of New York to a total of 90 days from the date of loss.

On November 22, 2011, FEMA issued a second bulletin extending the Proof of Loss deadline to a total of 150 days from the date of loss. As the Plaintiffs' date of loss was August 28, 2011, they had until January 25, 2012 to submit Proofs of Loss for any further damages claimed. The Plaintiffs concede that they have not obtained, nor did anyone acting on their behalf, obtain from FEMA any waiver of any provision of the SFIP or any rule of the NFIP.

By form dated May 28, 2012, the Plaintiffs submitted a supplemental claim through their public adjuster, John La Pata.

On August 12, 2012, Fidelity issued a partial denial of the Plaintiffs' supplemental claim. Although this partial denial did not mention the timeliness of the supplemental claim, the partial denial stated: “We do not waive any of our rights under this policy, but specifically reserve any and all rights under this policy and governing Federal law.” (Pls.' Exh. D.).

As noted above, on February 7, 2013, the Plaintiffs commenced this lawsuit.

On March 21, 2013, Fidelity removed this lawsuit to this Court.

On March 28, 2013, Fidelity interposed an answer. As one of its affirmative defenses, Fidelity stated as follows:

The SFIP expressly conditions the right to sue for further benefits under the policy upon the Insured's prior compliance with “all the requirements of the policy.” In order to obtain the federal benefits that the Insureds are seeking under the policy, the Insureds must meet the burden of proof to establish the pre-suit full, complete, truthful, and detailed compliance with “all” requirements of the SFIP, including but not limited to the notice of loss, separation of property, documentation, cooperation, proof of loss, and other requirements. See 44 C.F.R. Pt. 61, App. A(1), Art. VII, each provision of which is expressly pleaded herein by reference.

(Docket Entry No. 4, at 6.)

On June 5, 2014, the Plaintiffs filed suit in Supreme Court, Suffolk County against their insurance agent and broker for allegedly failing to advise them of the 150–day extension of time to file Proofs of Loss.

On August 29, 2014, Fidelity moved pursuant to Fed.R.Civ.P. 56 for summary judgment dismissing the complaint.

II. DISCUSSION

A. The Standard Governing a Motion for Summary Judgment

“Summary judgment must be granted where the pleadings, the discovery and disclosure materials on file, and any affidavits show ‘that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.’ ” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir.2011) (quoting Fed.R.Civ.P. 56(a) ). “In ruling on a summary judgment motion, the district court must resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment and determine whether there is a genuine dispute as to a material fact, raising an issue for trial.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir.2007) (internal quotation marks omitted). “A fact is material if it might affect the outcome of the suit under the governing law, and an issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 558 (2d Cir.2012) (internal quotation marks omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) (quotation marks and citation omitted); see also Fabrikant v. French, 691 F.3d 193, 205 (2d Cir.2012).

“The moving party bears the burden of establishing the absence of any genuine issue of material fact.” Zalaski v. City of Bridgeport Police Dep't, 613 F.3d 336, 340 (2d Cir.2010). If this burden is met, “the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown, 654 F.3d at 358. In order to defeat summary judgment, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts and may not rely on conclusory allegations or unsubstantiated speculation.” Id. (internal quotation marks and citations omitted).

B. The National Flood Insurance Program

Under the National Flood Insurance Act of 1968, 42 U.S.C. §§ 4001 –4127 (“NFIA”), “the federal government provides flood insurance subsidies and local officials are required to adopt and enforce various enforcement measures.” Palmieri v. Allstate Ins. Co., 445 F.3d 179, 183 (2d Cir.2006). “The NFIP, created by the [NFIA], is administered by FEMA and supported by taxpayer funds, which pays for claims that exceed the premiums collected from the insured parties.” Jacobson v. Metro. Prop. Cas. Ins. Co., 672 F.3d 171, 174 (2d Cir.2012).

Under the NFIA, FEMA “is authorized to prescribe regulations establishing the general method or methods by which proved and approved claims for losses may be adjusted and paid for any damage to or loss of property which is covered by flood insurance.” 42 U.S.C. § 4019. In 1983, FEMA created the Write Your Own program, which allows private insurance companies to issue and administer SFIPs in their own names as “fiscal agent[s] of the Federal Government.” 42 U.S.C. § 4071(a)(1) ; see also Palmieri, 445 F.3d at 183. “Thus, while the private insurance companies administer the federal program, ‘it is the Government, not the companies, that pays the claims.’ ” Jacobson, 672 F.3d at 175 (quoting Palmieri, 445 F.3d at 184 ).

All SFIPs require an insured to submit an executed Proof of Loss within sixty (60) days from the date of loss. See 44 C.F.R. Pt. 61, App. A(I), Art. VII(J)(4). In light of the “compelling interest in assuring uniformity of decision in cases involving the NFIP,” Jacobson, 672 F.3d at 175 (quoting Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d 386, 390 (9th Cir.2000) ), the Second Circuit has applied the standard of other circuits and “held that [proof of loss] requirements must be strictly construed and enforced.” Id.; Zuk v. Allstate Ins. Co., No. 12–CV–4186 (SJF)(AKT), 2014 WL 905552, at *3 (E.D.N.Y. Mar. 6,...