Opinion
CIVIL ACTION NO. 07-4927.
November 12, 2008
ORDER
Before the Court is Defendant, Fidelity National Property and Casualty's (Fidelity) Motion for Summary Judgment, which is opposed, and which came for hearing on November 12, 2008, on the briefs. After consideration of the motion, the opposition, and the applicable law, the Court grants the motion.
At the time of Hurricane Katrina, plaintiff Joseph J. Bijou, Jr. owned property located at 8018 Mercier Street, in New Orleans, Louisiana. The property was insured with the NFIP through State Farm which issued a Standard Flood Insurance Policy (SFIP) under the Write-Your-Own program of the National Flood Insurance Program (NFIP).
After Katrina, Bijou submitted a claim for flood damages under his SFIP policy. Fidelity assigned an independent adjuster to Bijou's claim. During the adjustment process, Fidelity determined that Bijou `s insured property did not sustain flood damage and closed the claim without payment.
On September 5, 2006, Fidelity received via Federal Express an undated Proof of Loss accompanied by letter from Bijou's counsel. The Proof of Loss was not accompanied by any supporting bills, receipts or other related documents. Fidelity issued a letter to Bijou rejecting the Proof of Loss based upon the lack of adequate documentation to support the claim. Bijou submitted no documentation to support the claim until his Rule 26 Disclosures were received on May 23, 2008.
Fidelity submits that Bijou is not entitled to recover any further benefits from his SFIP because he failed to comply with the conditions precedent to filing a lawsuit including the failure to file a timely, signed and sworn proof of loss accompanied by appropriate documentation as mandated by Article VII (J)(4) of the SFIP.
Bijou alleges that the FEMA adjuster took photographs of his property, he submitted a proof of loss on the FEMA form, and that there is an issue of fact as to whether that the information Fidelity received was sufficient to comply with the proof of loss requirements under the SFIP.
Bijou also asks this Court to consider whether the proof of loss form created by FEMA misled the insured into believing that their proof of loss requirements to preserve his claim would be fulfilled by fully completing the form provided by FEMA.
Regardless of the alleged misleading form, Bijou's claim involves the NFIP, which is operated by FEMA and supported by the federal treasury. By statute Fidelity is a fiscal agent of the United States. See 42 U.S.C. § 4071(a)(1).The regulations require that a NFIP participant must show prior compliance with all of the policies, which must be strictly construed. Accordingly, this Court must adhere to the 5th Circuit's holding in Gowland v. Aetna, 143 F.3d 951, 954, which concludes that the failure to provide a timely and complete sworn proof of loss statement "relieves the federal insurer's obligation to pay what otherwise might be a valid claim." Because this Court finds that there is no disputed issue of material fact, Fidelity is entitled to judgment as a matter of law.
Fidelity's Motion for Summary Judgment is GRANTED.