Opinion
Civil Action No. 02-3031
February 24, 2003
Before the Court is a Motion to Dismiss [DOC. 5] Pursuant to Rule 12(b)(6), 12(c), and 12(f) filed on behalf of defendant, Louisiana Farm Bureau Casualty Insurance Company ("Farm Bureau"). The Court, having considered the Motion to Dismiss filed on behalf of Defendant and the Notice of No Opposition submitted on behalf of the Plaintiff, the record, the law, and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. Background:
On September 27, 2002, plaintiffs Edward A. Danos and Michelle L. Danos ("Danos") filed their Petition for Damages ("Petition") against Farm Bureau with the 17th Judicial District Court for the Parish of Lafourche, State of Louisiana, Civ. No. 02-3031. Plaintiffs allege that Farm Bureau refused to pay an insurance claim arising from a heavy rainstorm that flooded and damaged their home located at 308 Supercharge Drive, Thibodaux, Louisiana in June 2001. Farm Bureau was the insurer of Plaintiffs home from September 2000-September 2001 and provided a policy of insurance which afforded coverage to the damages occasioned by the flooding. Plaintiffs were informed April 11, 2002 that their claim was denied and are seeking damages for the repair of their home, mental distress and inconvenience, and attorney's fees. The defendant Farm Bureau asserts that it is entitled to have the aforementioned state-law based claims, including those for attorney's fees, mental distress, inconvenience and interest, against it dismissed pursuant to Rule 12(b)(6), 12(c), and 12(f) of the Federal Rules of Civil Procedure because the controlling federal law governing the operation of the U.S. Government's National Flood Insurance Program ("NFIP") does not allow for recovery of such state law based claims against Farm Bureau and therefore should be dismissed.
II. Law and Analysis
A. The Law on Motions to Dismiss:
A motion to dismiss for failure to state a claim upon which relief can be granted under FRCP 12(b)(6) "is viewed with disfavor and is rarely granted." Lowery v. Texas AM University System, 117 F.3d 242, 247 (5th Cir. 1997); Kaiser Aluminum Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982). The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the original complaint must be taken as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1980). A district court may not dismiss a complaint under FRCP 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Blackburn v. Marshall, 42 F.3d 925, 931 (5th Cir. 1995). The Fifth Circuit defines this strict standard as, "whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief." Lowrey, 117 F.3d at 247 (citing S Charles A. Wright Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1357, at 601 (1969)).
B. Application to the Facts
Federal Civil Procedure Rule 12(b)(6) provides that a party may move a court to dismiss an action for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(b). In determining whether a complaint states a claim upon which relief may be granted, a court must not look beyond the pleadings. Sheppard v. Texas Department of Transportation, 158 F.R.D. 592, 595 (E.D. Tex. 1994). In addition to the complaint itself, all exhibits attached to a complaint are part of the pleadings. Id. Dismissal is proper only if there is either: (1) the lack of a cognizable legal theory or (2) the absence of sufficient facts alleged under a cognizable legal theory. Meador v. Onyx Energy Co., 87 F. Supp.2d 658, 661 (E.D. Tex. 2000) (citing to Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988)).
The property at issue is covered by Farm Bureau's insurance policy, which is underwritten by the U.S. Treasury Standard Flood Insurance Policy ("SFIP"). The terms of the SFIP contain a provision, "This policy is governed by the flood insurance 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(1), Art. 11 (1999 edition). The Fifth Circuit affirmed the District Court's decision in Durkin that it is well established that federal law governs disputes that arise from insurance policies issued under the NFIA. Durkin v. State Farm Mutual Insurance Company, 3 F. Supp.2d 724, 728 (E.D. La. 1997), aff'd, 141 F.3d 1163 (5th Cir. 1998). The court in Durkin further explained that permitting personal recovery in the form of attorney's fees, penalties, or punitive damages would defeat the purpose of the NFIA. Durkin, 3 F. Supp.2d at 729. The court in Levy ruled that no penalty, punitive damages or attorneys' fees or any other, non-pecuniary damages recognized under Louisiana law can be awarded in such a suit where an insurance company fails to pay the insured under a policy underwritten by the NFIP. Levy v. Omaha, No. CIV.A.96-567, 1996 WL680251 (E.D.La. Nov. 21, 1996).
The Fifth Circuit in West v. Harris reasoned: "Since the flood insurance program is a child of Congress conceived to achieve policies which are national in scope, and since the federal government participates extensively in the program both in a supervisory capacity and financially, it is clear that the interest in uniformity of decision . . . mandates the application of federal law. . . . Thus, a prevailing plaintiff in a suit on a flood insurance policy issued pursuant to the National Flood Insurance Act is not entitled to recover the statutory penalty and attorney's fees allowed by state insurance law for arbitrary denial of coverage . . ." West v. Harris, 573 F.2d 873, 881 (5th Cir. 1978), cert. denied, 440 U.S. 946 (1979).
The Court further notes that in its reply motion, the plaintiffs do not oppose defendants motion to dismiss as to the state claim laws, attorney's fees, mental distress and inconvenience. Accordingly, as Plaintiffs' Petition fails to state any facts which support a claim against Farm Bureau for failure to pay Plaintiffs' alleged damages under state law claims, Plaintiffs' state law claims against Farm Bureau must be dismissed.
III. Conclusion
For the reasons set forth above, this Court finds that Plaintiff has failed to state a claim upon which relief can be granted, as to the Plaintiffs' state law claims, including mental distress, inconvenience, interest and attorney's fees.
Accordingly,
IT IS ORDERED that the Defendants' Motion to Dismiss Pursuant to Rule 12(b)(6), as it applies to the state-based claims asserted against the "Louisiana Farm Bureau Insurance Company" is hereby granted.