United States District Court, D. South Carolina, Columbia Division
Monticello Road, LLC, Monticello Road C Store, LLC, Plaintiffs,
Auto-Owners Insurance, Defendant.
ORDER AND OPINION
Honorable Margaret B. Seymour Senior United States District
matter is before the court on Defendant Auto-Owners
Insurance's (“Auto-Owners”) Motion for
Summary Judgment, pursuant to Federal Rule of Civil Procedure
56. ECF No. 46. Auto-Owners is a Write-Your-Own
(“WYO”) carrier participating in the National
Flood Insurance Program (“NFIP”). The WYO program
allows private insurance companies, like Auto-Owners, to
issue Standard Flood Insurance Policies (“SFIP”).
Auto-Owners contends that summary judgment is warranted
because Plaintiffs Monticello Road, LLC and Monticello Road C
Store, LLC (collectively, “Plaintiffs”) have
failed to comply with all of the requirements set forth in
Article VII(J) and VII(R) of their SFIP. ECF No. 46-1 at 2.
For the reasons stated below, this court grants
PROCEDURAL HISTORY AND FACTUAL
brought this action against Auto-Owners in the Court of
Common Pleas for Richland County, South Carolina, alleging
that “Defendant [has] refused to pay the balance of
[Plaintiffs' insurance] claim.” ECF No. 1-1 at
¶ 8. Plaintiffs claim Auto-Owners' failure to pay
was in bad faith. Id. at ¶ 9.
Plaintiffs seek actual and punitive damages. Id.
Auto-Owners timely removed this action, citing federal
question jurisdiction pursuant to 28 U.S.C. § 1331 or 42
U.S.C. § 4072. ECF No. 1 at 2. Plaintiffs moved the
court for remand, which was denied. ECF No. 28.
December 1, 2017, Auto-Owners filed a Rule 12(c) motion. ECF
No. 45. On June 25, 2018, this court granted Auto-Owners'
motion, dismissing Plaintiffs' bad faith failure to pay
claim and punitive damages claim. ECF No.71. Plaintiffs'
sole remaining claim against Auto-Owners is for breach of
contract of the SFIP.
operate a gas station and convenience store in Columbia,
South Carolina. Plaintiffs allege that in or about
there was a severe storm in Columbia, South Carolina that
caused damage to various gas pumps, gas equipment, inventory,
and a canopy. ECF No. 1-1 at ¶ 4-5. According to
Auto-Owners, on October 12, 2015, an NFIP authorized flood
adjuster inspected the loss to Plaintiffs' property and
recommended a total payment of $87, 151.86, covering both the
damage to Plaintiffs' building and damages to contents.
ECF No. 46-1 at 6, ¶ 10. The adjuster prepared a Proof
of Loss form in the amount of $87, 151.86, which Plaintiffs
signed on November 23, 2015. Id. On December 8,
2015, Auto-Owners issued payment totaling $87,
151.86 pursuant to the terms of Plaintiffs'
SFIP. Id. at 7, ¶ 12.
receiving payment based on the first Proof of Loss filed,
Plaintiffs made an additional request for payment for
contents items. A second inspection was conducted by the
same authorized adjuster, and, after further inspection he
recommended a total payment of $17, 022.05. Id. at
7, ¶¶ 13-14. A second Proof of Loss was prepared
and signed by Plaintiffs on February 22, 2016. Id.
at 7, ¶ 14. However, under Article VII(J)(4) of
Plaintiffs' SFIP, Proof of Loss forms are required to be
filed within 60 days of the date of loss, which in this case
was October 4, 2015. Auto-Owners explains that Plaintiffs
submitted their second Proof of Loss past the 60-day deadline
and that, the only way the 60-day mandate could be waived was
if the Federal Insurance Administration (“FIA”)
provided written authorization. Id. at 7, ¶ 15.
March 25, 2016, a representative of Auto-Owners requested a
waiver from the FIA to make the $17, 022.05 payment, and on
March 28, 2016, the waiver was granted. Id. at 7,
¶ 16. The waiver specified that it was only for
“the amount of the loss and the scope of the damages
outlined in the request and otherwise does not waive the
proof of loss or any other requirement of the Standard Flood
Insurance Policy . . . .” ECF No. 46-2 at 22-23. After
receiving approval of the waiver from the FIA, Auto-Owners
made a payment to Plaintiffs on March 30, 2016, totaling $17,
022.05. ECF No. 46-1 at 8, ¶ 17. Auto-Owners asserts
that since it issued the second payment to Plaintiffs,
Plaintiffs have not filed another Proof of Loss form, nor has
a waiver been requested or authorized, for the items subject
to this lawsuit, including the gas pumps and canopy.
Id. at 9, ¶ 18.
to Federal Rules of Civil Procedure Rule 56(a), the court
shall grant summary judgment if the moving party shows that
there is no genuine dispute as to any material fact and is
entitled to judgment as a matter of law. The evidence
presents a genuine issue of material fact if a
“reasonable jury could return a verdict for the
non-moving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986). Any inference drawn
from the facts should be viewed in the light most favorable
to the non-moving party. United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962). The party seeking
summary judgment bears the initial burden of demonstrating to
the district court that there is no genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S 317, 323
(1986). Once the moving party makes this showing, the
opposing party must set forth specific facts showing there is
a genuine issue of fact. A “mere scintilla” of
evidence is insufficient to overcome the summary judgment
motion. Anderson, 477 U.S. at 252.
terms and conditions of a SFIP are specified by regulation.
The SFIP informs the insured that “[t]his policy and
all disputes arising under the policy are governed
exclusively by the flood regulations issued by FEMA, the
National Flood Insurance Act of 1968, as amended (42 U.S.C.
§§4001, et seq.) and Federal common
law.” 44 C.F.R. pt. 61, app. A(2), art. IX; Woodson
v. Allstate Ins. Co., 855 F.3d 628, 631 (4th Cir. 2017).
Under the terms of the SFIP, when an insured has suffered
loss, the insured is expressly required to, among other
things, “send the WYO carrier a proof of loss waiver
within 60 days of the loss.” 44 C.F.R. pt. 61, app.
A(2), art. VII(J)(4). Absent express written consent from the
FIA, the SFIP cannot be changed, nor can any provision
waived. 44 C.F.R. pt. 61, app. A(2), art. VII(D); Dawkins
v. Witt, 318 F.3d 606, 612 (4th Cir. 2003) (explaining
that, despite stressful circumstance, and absent waiver,
proof of loss must be filed with 60 days to receive coverage
pursuant to the requirements of the insurance policy).
SFIP further provides that a party may not sue the insurer to
recover money under the SFIP unless the party has complied
with all the requirements of the policy. 44 C.F.R. pt. 61,
app. A(2), art. VII(R). Should a party file suit, it must be
within one year of the date of the written denial of all or
part of the claim and the party must file in the United
States District Court of the district in which the insured
property was located at the time of loss. Id.;
see also 42 U.S.C. § 4072; 44 C.F.R. §
62.22. This requirement applies to any claim a party may have
under the policy and to any dispute a party may have arising
out of the handling of a claim under the policy. 44 C.F.R.
pt. 61, app. A(2), art. VII(R). Thus, a party may
not sue to recover money under the SFIP without first
complying with all the requirements of the SFIP. Woodson,
855 F.3d at 634 (explaining that, “[t]he aggregate
of these provisions thus establishes . . . that the action
may be filed only in a U.S. District Court.”);
Marseilles Homeowners Condo. Ass'n Inc. v. Fid. Nat.
Ins. Co., 542 F.3d 1053, 1055 (5th Cir. 2008)
(“[Plaintiff] failed to submit a sworn proof of loss,
which is a condition precedent to bringing the instant
states Plaintiffs have not filed a Proof of Loss form for the
additional amounts sought under this lawsuit, and that this
failure to comply with the requirements of the SFIP bars
Plaintiffs from not only requesting additional payment, but
also from filing a lawsuit seeking further federal benefits
under the SFIP. The court agrees. Plaintiffs have not
provided the court with specific facts to show that a genuine
issue of material fact exists to defeat Auto- Owners'
summary judgment motion. Plaintiffs concede in their response
in opposition that a Proof of Loss form was not submitted for
the items subject to this lawsuit. See ECF No. 56
(“Plaintiff admits that a sworn proof of loss was
submitted without including the gasoline pumps and canopy
which are subject to the lawsuit.”). While Plaintiffs
suggest that “proof of loss and replacement cost [of
the gasoline pumps and canopy] [were] submitted by the
Plaintiff[s] to the independent adjuster and to the insurance
claim handler” and therefore should have been included
in the proof of loss, Plaintiffs provide no factual support
for their ...